John Doe I, Individually and as parent and natural guardian of John Doe II and Jane Doe (minors), et al v. Royal Caribbean Cruises, Ltd., et al

April 25, 2013

John Doe I, Individually and as parent and natural guardian of John Doe II and Jane Doe (minors), et al v. Royal Caribbean Cruises, Ltd., et al

Response to Motion to Dismiss

The experienced maritime attorneys at Lipcon, Margulies & Winkleman, P.A. are prepared to help injured cruise ship passengers whether they are injured on ship or on shore. In this case, a group of cruise ship passengers were hurt when the bus transporting them on a shore excursion crashed. Lipcon, Margulies & Winkleman, P.A. filed suit in the Southern District of Florida seeking compensation for these injured passengers from Royal Caribbean and its shore excursion partner.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-20619-CIV-GRAHAM
JOHN DOE I, Individually and as Parent and Natural
Guardian of JOHN DOE II and JANE DOE (minors), et al.,
Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES LTD.,
RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY,
DUTCH TOURS ENTERPRISES N.V., and
XYZ CORPORATION(S),
Defendants.
______________________________ /

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT, DUTCH TOURS ENTERPRISES N.V.’S MOTION TO DISMISS FOR INSUFFICIENT SERVICE AND FAILURE TO STATE A CLAIM[1]

The Plaintiffs, JOHN DOE I, et al. (“Plaintiffs”), by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby respond in opposition to Defendant, DUTCH TOURS ENTERPRISES N.V. (“Dutch Tours[’]”) Motion to Dismiss Plaintiffs’ Complaint [D.E. 1] and rely in good faith on the following memorandum of law.

DUTCH TOURS’ MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS SHOULD BE DENIED BECAUSE PLAINTIFFS PROPERLY SERVED DUTCH TOURS THROUGH MULTIPLE MEANS (INCLUDING THE SECRETARY OF STATE AND THIS COURT’S CLERK) WHICH SATISFIED FEDERAL RULE OF CIVIL PROCEDURE 4 AND CLEARLY PROVIDED DUTCH TOURS NOTICE OF THIS ACTION. DUTCH TOURS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM SHOULD ALSO BE DISMISSED BECAUSE THE COMPLAINT SETS FORTH SUFFICIENT FACTUAL ALLEGATIONS AND THE ARGUMENTS RAISED BY DUTCH TOURS INVOLVE QUESTIONS OF FACT CONCERNING THE PARTIES’ INTENT WHEN DRAFTING THE EXCURSION CONTRACT THAT ARE IMPROPER TO RESOLVE AT THIS JUNCTURe.

i. Introduction

This matter arises out of the personal injuries suffered by Plaintiffs, who were passengers aboard Defendant, ROYAL CARIBBEAN CRUISES LTD.’S (“Royal Caribbean[’s]”) cruise. [D.E. 1, 16]. As part of the cruise experience, Royal Caribbean offered its passengers, including the Plaintiffs, the opportunity to go on various shore excursions. [D.E. 1, 18]. One of those excursions was the Loterie Farm Treetop Adventure Tour, which the Plaintiffs participated in while the cruise ship was docked in St. Maarten. [D.E. 1, 22]. This excursion was owned and/or managed by Dutch Tours and/or RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY (“RDVT”) (at times collectively referred to as “the Excursion Entities”). [D.E. 1, 5, 11]. In route to Loterie Farm for the excursion, the bus driver lost control of the bus and crDOEed into a ditch, causing the Plaintiffs to suffer severe and permanent injuries. [D.E. 1, 23].

As a result thereof, the Plaintiffs initiated the instant action against Dutch Tours[2] alleging Negligence (Count II), Joint Venture (Count IV), and Third Party Beneficiary (Count V). [D.E. 1]. At issue herein is Dutch Tours’ Motion to Dismiss which was filed on April 8, 2013. [D.E. 20]. In its motion, Dutch Tours sets forth three bases for dismissal: insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5); lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); and, failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). [D.E. 20, pp. 1-2]. With regard to Dutch Tours’ jurisdictional argument, concurrent with this response, the Plaintiffs moved this Honorable Court to stay the case pending completion of limited jurisdictional discovery to allow the Plaintiffs an opportunity to meaningfully respond to the factual arguments Dutch Tours raises. [D.E. 26].

Herein, Plaintiffs respond in opposition to Dutch Tours’ remaining arguments concerning the alleged insufficient service and failure to state a claim. As set forth in detail below, these arguments fail in their entirety because the Plaintiffs properly served Dutch Tours through multiple means thereby giving them notice of the action, and Plaintiffs’ Complaint properly states a claim for Negligence, Joint Venture and Third Party Beneficiary.

Ii. The Plaintiffs properly served Dutch Tours through multiple means in accordance with the Federal Rules of Civil Procedure, and it is clear that Dutch Tours received sufficient notice of this action.

As mentioned above, Dutch Tours first moves for dismissal based on insufficient service. The facts and case law make clear, however, that it was properly served through multiple means.

First, on February 26, 2013, pursuant to Florida Statutes § 48.181, the Florida Department of State, Secretary of State, Division of Corporations, accepted service for Dutch Tours [D.E. 6-1].

Second, on March 7, 2013, the Plaintiffs directly mailed via Registered Mail, Return Receipt Request, a copy of the Complaint and Summons to the office of Dutch Tours. [D.E. 6-2]. On March 7, 2013, the Plaintiffs filed an Affidavit of Service with a copy of the stamped and addressed registered mail sent to Dutch Tours. [D.E. 6].

Third, on March 7, 2013, in accordance with Federal Rule of Civil Procedure 4, and/or 28 U.S.C. § 1608(a)(3) or (b)(3)(B), the Clerk mailed via International Service the Complaint and Summons to the office of Dutch Tours. [D.E. 9]. On April 12, 2013, the Plaintiffs filed proof containing “A.MC RAE[‘s]” signature that the Clerk’s International Service was received by Dutch Tours on March 11, 2013. [D.E. 23, 23-2]. Based on the affidavit attached to Dutch Tours’ motion, “A.MC RAE” appears to be Anita McRae – the “Managing Director of Dutch Tours”. [D.E. 20, p.4].

Notwithstanding the above, Dutch Tours argues that all of the above methods of service are insufficient and grounds for dismissal. Each method of service is addressed separately below.

a. Secretary of State

Federal Rule of Civil Procedure 4(h) provides that a foreign corporation may be served by “delivering a copy of the summons and of the complaint to any other agent authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(h) (emphasis added).

Under section 48.181 of the Florida Statutes, the Secretary of State is authorized to accept service of process on behalf of foreign corporations that operate, conduct, engage in, or carry on a business or business venture in the state. See Fla. Stat. § 48.181; see also Cantley v. Ducharme, 09-23424-CV, 2010 WL 2382912 (S.D. Fla. 2010) (“any foreign corporation ‘operat[ing], conduct[ing], engag[ing] in, or carry[ing] on a business or business venture’ in Florida is deemed to appoint Florida’s Secretary of State to accept service of process on its behalf.”) (citing § 48.181) (alterations in original).

Herein, it is undisputed that Dutch Tours is a foreign corporation.[3] It is also undisputed that the Florida Secretary of State accepted service on Dutch Tours’ behalf. [D.E. 6-1]. Dutch Tours, however, argues that process through the Secretary of State is improper because the Plaintiffs failed to allege specific facts to support such service. Contrary to Dutch Tours’ argument, Plaintiffs’ Complaint sets forth much more than “one general and conclusory allegation” as Dutch Tours suggests. [D.E. 20, p. 4].

Specifically, Plaintiffs allege that Dutch Tours “[o]perated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county.” [D.E. 1, 7(a)]. Plaintiffs’ Complaint goes on to assert support for such allegation by stating that Dutch Tours maintains an office and sells shore excursion tickets in Miami, Florida and/or sells shore excursion tickets through Royal Caribbean’s website which is administered in Florida. [D.E. 1, 14].

Plaintiffs also set forth a multitude of detailed, factual allegations to support the alleged business venture between the Defendants, including, but not limited to, that “[a]s its part of the joint venture, RCCL arranged for, sponsored, recommended, marketed, operated, marketed, sold and/or collected money for the subject shore excursion and the money was then shared between RCCL and the Excursion Entities. As its part of the joint venture, the Excursion Entities provided labor and/or operated the subject shore excursion.” [D.E. 1, 56]; see also [D.E. 1, 27(a)-(h), 54-65]. The Plaintiffs also succinctly allege that Defendants’ negligence in connection with their joint venture caused the Plaintiffs’ injuries and damages. [D.E. 1, 65].

The above allegations are to be accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Such allegations are also sufficient to establish proper substituted service through the Secretary of State for purposes of § 48.181. See Labbee v. Harrington, 913 So. 2d 679, 682 (Fla. 3d DCA 2005) (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)) (“To determine whether long-arm jurisdiction is appropriate for substituted service, the complaint must either plead a basis for jurisdiction pursuant to the language of section 48.181 or allege sufficient jurisdictional facts to satisfy the statute.”). In fact, the Florida Supreme Court has held that engaging in a single act for profit can amount to a business venture. Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005) (citing Wm. E. Strasser Constr. Linn, 97 So. 2d 458, 459 (Fla. 1957)).

Accordingly, Plaintiffs’ service on Dutch Tours through the Florida Secretary of State, as its agent authorized by law to receive service of process, was proper.[4]

Alternatively, the Plaintiffs submit that Dutch Tours was properly served through Registered Mail as well as the Clerk’s International Service as discussed below.

b. Service of Process by Mail through Registered Mail and the Clerk’s International Service

Plaintiffs’ service of process by mail through registered mail as well as the Clerk’s International Service comply with the Federal Rules of Civil Procedure. Specifically, Federal Rule of Civil Procedure 4 provides that a corporation, partnership, or association may be served “in any manner prescribed by Rule 4(f)” which governs service upon an individual in a foreign country. Fed. R. Civ. P. 4(h)(2). Pursuant to Rule 4(f), an individual (and, thus, a foreign entity) may be served “by a method that is reasonably calculated to give notice. using any form of mail that the clerk addresses and sends to the [foreign entity] and that requires a signed receipt.” Fed. R. Civ. P. 4(f)(2)(C)(ii). As evident from Plaintiffs’ proof of delivery, the Clerk’s Federal Express package did in fact require (and Plaintiffs obtained) a signed receipt. [D.E. 23-2].

Furthermore, in a case involving a foreign individual defendant (which is applicable under Rule 4(h)(2)), this Court has previously held that the same methods of service Plaintiffs utilized herein are proper. See Balachander v. NCL (Bahamas) and Rey Ponteras, 1:11-cv-21064-JLK (S.D. Fla. 2011) [D.E. 25, p. 3]. In Balachander, this Court stated:

The docket sheet reflects that a summons for service abroad was returned executed on May 12, 2011. The affidavit of service states that the summons and complaint were mailed directly to Defendant Ponteras at his last known address in the Philippines by Plaintiff’s counsel on May 11, 2011. In addition, Plaintiff filed a copy of the stamped and addressed registered mail sent to Defendant Ponteras. The filing reflects that a signature is required by the recipient. Defendant Ponteras does not dispute that the materials were mailed, or that the mailing address is correct. This is a valid method of service under the Federal Rules of Civil Procedure. Rule 4(f) provides that an individual in a foreign country may be served by, “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Fed. R. Civ. P. 4(2)(C)(2).

Id. (emphasis added).

Herein, like Balachander, the Summons and Complaint were mailed directly to Dutch Tours by registered mail and a signature was required by the recipient. [D.E. 6]. Process was also served directly upon Dutch Tours through the Clerk, which Balachander cited. [D.E. 9]. Further like Balachander, Dutch Tours does not dispute that it received the Summons and Complaint. In fact, Dutch Tours admits that it did. [D.E. 20-1, 19].

Nevertheless, Dutch Tours relies on Prewitt Enterprises, Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916 (11th Cir. 2003) to argue that service by registered mail directly to a defendant is improper. That case is easily distinguishable, however. The defendant in Prewitt was an intergovernmental organization and the manner of service was expressly prohibited by Australian law. Prewitt, 353 F.3d at 927. In contrast, Dutch Tours has not put forth any evidence that St. Maarten law prohibits the methods of service that Plaintiffs utilized. Instead, Dutch Tours simply states that the methods are not “reasonably calculated to give notice”. [D.E. 20-2, 4-6].[5] That is insufficient pursuant to this Court’s prior holding in TracFone Wireless, Inc. v. Distelec Distribuciones Electronicas, S.A. de DV, 268 F.R.D. 687, 690-91 (S.D. Fla. 2010) (“TracFone I”) (citing Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002) (“In fact, as long as court-directed and not prohibited by an international agreement, service of process ordered under Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign country.”) (emphasis added)).

Furthermore, concerning the Clerk’s International Service, Dutch Tours only raises two arguments which summarily fail. First, it argues that such service is flawed because Federal Express is not “mail”. [D.E. 20, p. 8].[6] The only support Dutch Tours cites for this proposition is a district court in Illinois which refers to the 1993 version of Webster’s Dictionary. [D.E. 20, p. 8]. This Court, however, has held that “serving [defendant] with a copy of the Summons and Complaint sent via international express mail and via FedEx is permissible pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii).” TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F. Supp. 2d 1307, 1310 (S.D. Fla. 2010) (“TracFone IIrdquo;). Notably, Rule 4 itself states that the Clerk may use “any form of mail”. Fed. R. Civ. P. 4(f)(2)(C)(ii) (emphasis added).

Second, Dutch Tours argues that Plaintiffs failed to provide the Court with evidence of a “signed receipt”. [D.E. 20, p. 8]. As discussed above, however, the Plaintiffs did in fact file proof of a signed receipt. [D.E. 23, 23-2].

All in all, the multiple forms of service utilized by Plaintiffs undeniably put Dutch Tours on notice of the instant action, which is the principle purpose of Rule 4. Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277 (S.D. Fla. 1999) (“The principle purpose of the service of process rule is to give the defendant notice that an action has been initiated.”). Accordingly, Dutch Tours’ Motion to Dismiss for insufficient service of process should be denied.

IIi. The Complaint properly and succinctly states claims for Negligence, Joint Venture and Third Party Beneficiary, setting forth the Plaintiffs’ entitlement to relief for each count as well as factual allegations in support of each claim.

“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.” Moranos v. Royal Caribbean Cruises, Ltd., 565 F. Supp. 2d 1337, 1338 (S.D. Fla. 2008) (citing Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984)) (emphasis added). 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. M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 (11th Cir. 2006). Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In sum, “[t]he 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).

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

a. Count II. The Complaint properly and succinctly states a claim for Negligence.

Count II of Plaintiffs’ Complaint alleges negligence against Dutch Tours. In order to satisfy the burden of proof in a negligence action, a plaintiff must show that: 1) the defendant owed plaintiff a duty; 2) the defendant breached that duty; 3) the breach was the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffered damages. Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).

In its Motion to Dismiss, Dutch Tours only raises an issue regarding the second element. Specifically, Dutch Tours argues that Plaintiffs provided no factual basis to support a breach. Contrary to their argument, however, the Complaint alleges with sufficient factual matter the ways in which Dutch Tours breached their duty to provide reasonable care, including, but not limited to, the following omissions:

a. Failure to adequately inspect and/or monitor the bus for the subject shore excursion so as to ensure that it was reasonably safe for cruise ship passengers; and/or
b. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or .
c. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was regularly and adequately inspected and/or maintained; and/or .
d. Failure to provide reasonably safe transportation for Plaintiffs and other cruise passengers participating in the subject shore excursion; and/or .
e. Failure to provide a competent driver for the transportation used for the subject shore excursion; and/or .
f. Failure to adequately warn Plaintiffs of the dangers involved in driving a bus through such a steep and narrow road; and/or
g. Failure to ensure that the route taken to the shore excursion was reasonably safe considering the transportation used

[D.E. 1, 42(a)-(x)].

The above allegations set forth with enough factual matter (taken as true) to suggest that Dutch Tours was negligent in accordance with Federal Rule of Civil Procedure 8(a) and the Supreme Court’s cases in Erickson and Twombly. The allegations therefore provide Dutch Tours with notice of what the claim is about and, at the very least, are sufficient to draw a reasonable inference of negligence. See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under DOEcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Moreover, the Plaintiffs are not required to plead evidence, nor are they required to plead every single fact upon which their claim is based. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (“[plaintiff] is not required to plead evidence, nor even all the facts upon which her claim is based”).

Accordingly, Dutch Tours’ Motion to Dismiss Count II of Plaintiffs’ Complaint should be denied.

b. Count IV. The Complaint properly and succinctly states a claim for Joint Venture with sufficient factual allegations and any arguments concerning whether or not the language of the contract contradicts the actual relationship between the parties involve questions of fact that are improper to determine at this stage.

As to Plaintiffs’ Joint Venture claim against Dutch Tours (Count IV), Dutch Tours argues in its Motion to Dismiss that: 1) Plaintiffs merely set forth conclusory allegations and 2) Plaintiffs’ allegations are contradicted by the Agreement. As set forth below, however, these arguments are without merit and/or not ripe for adjudication at the motion to dismiss stage.

Plaintiffs pled a Joint Venture between Royal Caribbean and Dutch Tours with sufficient factual allegations. As the Florida Supreme Court stated in Kislack v. Kreedian, “the relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.” Kislack, 95 So. 2d 510, 515 (Fla. 1957) Florida courts have held that in order to create a joint venture relationship, there must be concurrence of the following elements: 1) a community of interest in the performance of the common purpose; 2) 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. Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla. 3d DCA 1974). The elements for asserting a joint venture claim under Florida law and federal common law are similar. However, federal common law imposes the element of intent to create a joint venture, but does not impose the Florida law element of a community interest in the performance of a common purpose. Skeen v. Carnival Corp., 08-22618-CIV, 2009 WL 1117432 at *3 n.3 (S.D. Fla. Apr. 24, 2009). Herein, the Plaintiffs’ Complaint sufficiently alleged joint venture under both Florida law and federal common law.

First, the Complaint alleged element one by showing a community of interest between Dutch Tours and Royal Caribbean in the performance of a common purpose as required under Florida law—providing excursions to passengers aboard the ship. [D.E. 1, 59]. The Complaint also alleged the existence of an agreement and, therefore, the requisite intention by the parties as required under federal common law.[7] For instance, the Complaint states in relevant part:

[A]t all times material hereto, a partnership and/or joint venture existed between the Excursion Entities by virtue of the following, whereby RCCL and the Excursion Entities are jointly and severally responsible for the negligence of each other as partners of the partnership and/or joint venture:

a. RCCL and the Excursion Entities entered into an agreement whereby: RCCL made all arrangements for the Plaintiffs, on behalf of the partnership with the Excursion Entities, for the subject shore excursion being run by the Excursion Entities. [D.E. 1, 27(a)] (emphasis added).

The parties’ intention is also reflected in paragraph 55, which alleged that “RCCL and [Dutch Tours] entered into an agreement where RCCL would sell the subject shore excursion to its passengers and [Dutch Tours] would operate the subject shore excursion.”

As to element two, the Plaintiff alleged that Dutch Tours had joint control of the joint venture with Royal Caribbean. As part of the joint venture, Dutch Tours ran the subject excursion and had control over the day-to-day workings of the excursion. [D.E. 1, 11, 27(d), 55, 56, 58]. Royal Caribbean, in turn, arranged for, sponsored, recommended, marketed, operated, supervised, sold the subject and/or dealt with the financial aspects of the shore excursion. [D.E. 1, 11, 17, 19, 20, 22, 27(b), 27(c), 27(e), 27(f), 55, 56, 58]. Included therein are non-conclusory allegations such as the fact that the excursions were advertised in Royal Caribbean’s promotional material containing Royal Caribbean’s logo, the excursions were sold through the Royal Caribbean shore excursion desk aboard the cruise ship, and the manner in which the excursions were charged and paid for through Royal Caribbean. [D.E. 1, 17, 19, 20, 22, 27(a)-(h)].

Further, the Plaintiff sufficiently alleged element three—a joint proprietary interest in the subject matter. A joint proprietary interest generally requires joint ownership of the subject matter of the contract. Progress Rail Servs. Corp. v. Hillsborough Reg’l Transit Auth., 2005 U.S. Dist. LEXIS 37729 (M.D. Fla. 2005) (citing Dreyfuss v. Dreyfuss, 701 So. 2d 437, 439 (Fla. 3d DCA 1997)). Herein, Plaintiff alleges that Dutch Tours had a joint proprietary ownership interest in the subject shore excursion with Royal Caribbean because both parties had an ownership interest in the time and/or property they contributed to the joint venture. [D.E. 1, 60, 63(a)].

Lastly, both elements four and five were concisely pled in the Plaintiff’s Complaint: “RCCL shared profits and losses with [Dutch Tours] for the subject excursion.” [D.E. 1, 27(h)] see also [D.E. 1, 57, 61, 63(d), 63(e)]. In certain situations, where one party supplies labor and skill (such as Dutch Tours), the other supplies capital (such as Royal Caribbean) and both agree to share in the profits of the venture, Florida courts concluded an agreement to share losses exists as a matter of law “since in the event of a loss, the party supplying the knowhow would have exercised his skill in vain and the party supplying the capital investment would have suffered a diminishment thereof.” Williams v. Obstfeld, 314 F.3d 1270, 1276 (11th Cir. 2002) (quoting Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla. 3d DCA 1974)).

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”). Herein, the Complaint includes enough information from which it can be inferred that Dutch Tours intended to form into a joint venture with Royal Caribbean (i.e., they entered into an agreement to set up the joint venture; they each had control over the venture; they shared profits and losses; etc.) [D.E. 1, 27, 54-65]).

Dutch Tours’ argument concerning the language of the contract involves questions of fact that are improper to determine at this stage. As an additional ground to challenge Plaintiffs’ Joint Venture claim, Dutch Tours relies and attaches to its Motion to Dismiss a document titled, “Tour Operator Agreement.” [D.E. 3]. It specifically points to the language in the contract which states that Dutch Tours is considered an “Independent Contractor.” However, at the motion to dismiss stage, the scope of a court’s review must be limited to the four corners of the complaint. See St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002); see also Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007).

Even if this Honorable Court does consider the attached agreement, the language Dutch Tours relies on does not end the inquiry. 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). For instance, Section 1 of the agreement provides that Dutch Tours 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 Dutch Tours’ excursion and is the “sole party” authorized to collect payments for Dutch Tours’ excursion. Further, Section 6 requires Dutch Tours to obtain approval from Royal Caribbean for any advertising, promotion, marketing, or publicity. Moreover, Section 11 requires Dutch Tours to indemnify Royal Caribbean “from and against any and all losses, claims legal fees, costs and expenses” arising from Dutch Tours’ operations of the excursion.[8]

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 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 Plaintiffs have presented sufficient facts – both in the contract as well as in their Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. Accordingly, Dutch Tours’ Motion to Dismiss Count IV of Plaintiffs’ Complaint should be denied.

c. Count V. Dutch Tours’ grounds for dismissing Plaintiffs’ Third Party Beneficiary claim is improper at this juncture as it would require the Court to make a determination of fact concerning the contracting parties’ intent.

Count V of the Complaint alleges a cause of action for Dutch Tours’ breach of the contract between the Defendants to which the Plaintiffs were third-party beneficiaries.

Generally, to maintain a cause of action for breach of a third party beneficiary contract, the party asserting the third party beneficiary status must prove: 1) the existence of the contract, 2) clear or manifest intent of the parties that the contract primarily and directly benefits the third party, 3) breach of a contact by a contracting party, and 4) damages to the third-party resulting from the breach. Steadfast Ins. Co. v. Corporate Protection Security, Inc., 554 F.Supp.2d 1335, 1337 (S.D. Fla. 2008).

The Plaintiffs sufficiently plead each and every element of a third party beneficiary claim in their Complaint [D.E. 1, 66-70], which Dutch Tours does not contest. To be clear, Dutch Tours’ sole argument concerning Count V is that the agreement between Royal Caribbean and Dutch Tours “explicitly states that there are no third party beneficiaries to the contract.” [D.E. 28, p. 28]. However, for the same reasons discussed above concerning Plaintiffs’ Joint Venture count, that argument is improper at this juncture as it would require the Court to make a determination of fact.

Specifically, although Dutch Tours attempts to simply point to the contract, the intent of the parties is what is 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).[9] 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. 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. 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.