July 05, 2013

Jane Doe v. Royal Caribbean Cruises, Ltd. – Part 4

Response in Opposition to a Motion for Leave to file a Sur-Reply

The admiralty attorneys at Lipcon, Margulies & Winkleman, P.A. actively litigate cases through trial and appellate proceedings. In this document, the Plaintiff is responding to a motion from Royal Caribbean for leave to file a sur-reply in ann appellate proceeding. By handling our cases from trial through appellate proceedings, our experienced maritime lawyers are provide comprehensive representation to injured passengers and crewmembers.

UNITED STATES COURT OF APPEAL
ELEVENTH CIRCUIT
CASE NO: 12-14412
JANE DOE,
Plaintiff/Appellant,

v.

ROYAL CARIBBEAN CRUISES, LTD.,
Defendant/Appellee.
_______________________________/

DOE’S RESPONSE IN OPPOSITION TO ROYAL CARIBBEAN CRUISES, LTD.’S MOTION FOR LEAVE TO FILE A SURREPLY

Plaintiff/Appellee, JANE DOE, (“DOE”) by and through her undersigned counsel, hereby files this Response in Opposition To Appellee Royal Caribbean Cruises Ltd.’s (“Royal Caribbean”) Motion for Leave to File a Surreply and as good cause therefore relies on the following:

ROYAL CARIBBEAN’S MOTION FOR LEAVE TO FILE A SURREPLY IS AN UNWARRANTED ATTEMPT TO HAVE THE LAST WORD IN THIS MATTER. NOTHING IN DOE’S REPLY BRIEF NECESSITATES THE FILING OF A SURREPLY, WHICH IS A DISFAVORED PRACTICE THAT WILL UNNECESSARILY DELAY A RULING IN THIS MATTER.

i. BACKGROUND

This appeal arises out of the rape and sexual assault of Royal Caribbean passenger, appellant JANE DOE. Orders granting summary judgment and disposing of all of DOE’s claims were entered on August 6, 2012. [D.E. 98, 99]. A notice of appeal was filed on August 20, 2012. [D.E. 100].

Over the course of six months, the parties fully briefed the issues presented in this appeal. However, in an attempt to get the last word and further delay a ruling after already having several extensions to file its response brief, Royal Caribbean now seeks leave from this Honorable Court to file an unnecessary surreply to DOE’s Reply Brief. Simply put, a surreply is completely unwarranted herein. This Honorable Court should deny Royal Caribbean’s motion and make its ruling based on the extensive briefing already completed in this appeal.

Ii. STANDARD FOR GRANTING A SURREPLY

When ruling on a motion for leave to file a sur-reply, this Honorable Court Must determine if the “movant has raised new arguments or facts in a reply brief” Coker v. Enhanced Senior Living, Inc., 897 F. Supp. 2d 1366 (N.D. Ga. 2012). “Rules of procedure do not authorize the filing of surreplies, but rather, surreplies typically will be permitted only in unusual circumstances which [are] decided by the Court.” Id. “The Court may in its discretion permit the filing of a surreply” See Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005). However, this Honorable Court should be wary to exercise its discretion to grant motions for leave to file a surreply as “[t]o allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs.” Garrison v. Northeast Georgia Med. Ctr., Inc., 66 F.Supp.2d 1336, 1340 (N.D.Ga.1999)

III.ARGUMENT

The Court should deny Royal Caribbean’s Motion for Leave to File a Surreply in the instant appeal because nothing raised by Royal Caribbean in its motion warrants the granting of this disfavored practice.

Firstly, Royal Caribbean’s Motion for Leave to file a surreply is itself a very thinly veiled surreply. For example, Royal Caribbean states, “Plaintiff mischaracterizes her evidence submitted in opposition to summary judgment, cites to ‘evidence’ contained nowhere in the record, and states the incorrect standard on summary judgment.” Appellee’s Motion for Leave to File Surreply, pg. 1. Royal Caribbean then goes on to address each of the supposed mischaracterizations, what “evidence” it contends does not support DOE’s argument, and the standard it believes applies on summary judgment[1].

Simply put, Royal Caribbean improperly used its Motion for Leave to File a Surreply as an opportunity to make all the arguments it wanted.

Although this tactic should not be condoned by the Court, the effect of Royal Caribean’s strategy is that it has now mooted any alleged necessity for a surrpely and thus Royal Caribbean’s motion should be denied. See Hinson v. Chelsea Indus., Inc., 542 F. Supp. 2d 1236, 1248 (M.D. Ala. 2008) (noting that where the additional evidence or argument the moving party seeks to offer in a proposed surreply would not change the outcome of the ruling, the surreply is moot and the motion should be denied). Herein, Royal Caribbean has already made its arguments and no additional briefing will change the outcome of this appeal because no new information could be offered in a surreply that Royal Caribbean has not offered in its response brief or in its Motion for Leave to File a Surreply. Accordingly, Royal Caribbean’s motion should be denied as moot.

Secondly, Royal Caribbean’s purported reasons for requesting a surreply do not warrant the granting of one. For example, the Court does not need the benefit of a surreply from Royal Caribbean to decide whether DOE “states the incorrect standard on summary judgment.” Similarly, this Honorable Court can determine on its own whether Plaintiff “cites to ‘evidence’ contained nowhere in the record” or “mischaracterizes her evidence.”[2] Surely this is not the “valid reason” the Courts had in mind when discussing the limited circumstances that warrant the granting of a surreply. See Fedrick v. Mercedes–Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D.Ga.2005).

Thirdly, DOE’s framing of the issues in her reply does not constitute new arguments or evidence that warrant a surreply. In its response brief, Royal Caribbean repeatedly construed DOE’s evidence as overly broad and not specific to the location of DOE’s attack. In reply to that, Burdeuax framed the issue before this Honorable Court by stating the readily verifiable fact that Cozumel is a small island with almost its entire population concentrated in the area of DOE’s attack. All Burdeuax did was provide context for the facts she had already presented in her initial brief.[3] See Terrell v. Contra Costa County, 232 Fed.Appx. 626, 629 n. 2 (9th Cir.2007) (reply evidence is not new when reply brief “addressed the same set of facts supplied in [..] opposition to the motion but provides the full context to [a] selected recitation of the facts.”)

Morever, as Royal Caribbean acknowledges in its motion, even if the above did constitute some new fact or evidence not previously raised by DOE, it is still the type of information that this Honorable Court is free to take judicial notice of. See Gov’t of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979). Contrary to what Royal Caribbean argues, the size and population of Cozumel are not reasonably in dispute.[4] See also Rothenberg v. Sec. Mgmt. Co., Inc., 667 F.2d 958, 961 (11th Cir. 1982) (the Appellate Court is free to take judicial notice of a fact not raised in the District Court that is public record and relevant to the appeal).

IV.CONCLUSION

Royal Caribbean’s Motion for Leave to File a Surreply is a thinly veiled attempt to get the last word in these proceedings. Nothing in DOE’s Reply brief warrants the granting of a surreply. This is even more apparent when this Honorable Court considers the disfavored view of granting surreplies and the delay this would cause in the present appeal. This arguments raised by Royal Caribbean are either moot or meritless and thus this Honorable Court should deny Royal Caribbean’s motion.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff/Appellant
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Eric C. Morales ERIC CHARLES MORALES
FLORIDA BAR # 91875

CERTIFICATE OF INTERESTED PARTIES AND CORPORATE DISCLOSURE STATEMENT

The undersigned counsel of record for Appellant, in compliance with FRAP 26.1 and 11th Cir. R. 26.1-1, certifies that the following listed persons, parties, and corporations have an interest in the outcome of this appeal.

JANE DOE
Richard Alsina, Esq.
Charles R. Lipcon, Esq.
Carlos Felipe Llinas Negret, Esq.
Jason R. Margulies, Esq.
Eric C. Morales, Esq.
Kerry Neirenberg, Esq.
Michael A. Winkleman, Esq.
Lipcon, Margulies & Winkleman, P.A.
Royal Caribbean Cruises, Ltd.
Mase, Lara, Eversol, P.A.
Curtis J. Mase, Esq.
Lauren E. Defabio, Esq.
Mase Lara Eversole, P.A.

[1] Notably, Royal Caribbean’s argument regarding the summary judgment standard comes from one quote in Burdeaux’s entire reply brief:

“It is only when the facts are susceptible of only one inference that the question is one of law for the court. Otherwise it should be submitted to the jury.” Trotter v. Hewett, 163 So.2d 510, 511-512 (Fla. 3rd DCA 1964).

This hardly merits a surreply because 1) the entire outcome of this case does not turn on this sentence and more importantly 2) Trotter v. Hewett, 163 So.2d 510, 511-512 (Fla. 3rd DCA 1964) was cited with approval by the Former Fifth Circuit. See Sosa v. Coleman, 646 F.2d 991, 995 (5th Cir. 1981), thus Royal Caribbean’s argument is meritless.

[2] Again, these arguments are also meritless. For example, Royal Caribbean argued that Burdeaux offered no evidence of a violent crime and sexual assault in downtown Cozumel. On the contrary, Richard Alexander’s affidavit cited a high rate of violent crime in the downtown shopping district. D.E. 75-9. Sherri Davis’ affidavit testified that a friend of hers was mugged on the main street in the downtown shopping district. D.E. 75-5. Similarly, the crime statistics referring to sexual assaults offered by Burdeaux related specifically to Cozumel. D.E. 75-6. As pointed out by Plaintiff in her reply brief, any statistic specific to Cozumel is necessarily inclusive of the downtown shopping district.

[3] i.e. the crime statistics and affidavits offered in response to summary judgment and again in Burdeaux’s initial brief. The fact that Cozumel is a small island with a concentrated population was naturally brought into this appeal by Royal Caribbean’s repeated argument in response to Burdeaux’s initial brief, that a crime statistic or affidavit regarding Cozumel as a whole has no relevance to the location of Burdeaux’s attack in the downtown shopping district. Even though it invited this response, Royal Caribbean would rather deceive this Honorable Court than have it make an informed decision based on all the facts. Royal Caribbean made an argument that forced Burdeaux to bring a fact to the Court’s attention, and now Royal Caribbean cries foul and wants further briefing on an issue that it cannot even reasonably dispute.

[4] Tellingly, although Royal Caribbean used its Motion for Leave to File a Surreply as an opportunity to argue against all of the claimed deficiencies in Burdeaux’s reply brief, it offered nothing in response to the simple statement that Cozumel is a small island with the majority of its population centered on the small area of the island where Burdeaux was attacked.