April 08, 2013

John Doe v. Star Clippers, Ltd., et al – Continued

Motion to Compel

Our Maritime attorneys are experienced in actively advocating on your behalf throughout all stages of litigation. This includes during the process of discovery. Discovery is a critical phase of litigation that can lead to information that will harm or hurt a maritime personal injury case. In this motion to compel, our admiralty lawyers ask the Court to order that the Defendant provide information relevant to prove that the Court can exercise its power over a foreign Defendant in the case.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 12-CV-23768-KING/McALILEY
JOHN DOE,
Plaintiff,

STAR CLIPPERS, LTD. CORP.,
STAR CLIPPERS GSA, INC., d/b/a
STAR CLIPPERS AMERICAS and
LUXEMBOURG SHIPPING SERVICES, S.A.,
d/b/a STAR CLIPPERS,
Defendants.
_____________________________/

PLAINTIFF’S MOTION TO COMPEL BETTER ANSWERS TO PLAINTIFF’S JURISDICTIONAL INTERROGATORIES AS TO EACH DEFENDANT[1]

Plaintiff, JOHN DOE, by and through his undersigned counsel, hereby files this Motion to Compel Better Answers to Plaintiff’s Jurisdictional Discovery, and as good cause therefore relies on the following:

Plaintiff propounded jurisdictional discovery to all Defendants on January 9, 2013. the Defendants were given an extension of time to provide responses and did so on February 27, 2013. Thereafter the parties agreed to a one week extension of time to file a motion to compel to facilitate a Rule 7.1 conference. This request was granted by the Court. [D.E. 29]. The parties held a rule 7.1 conference on April 5^th and were able to limit the issues to the interrogatories contained below:

AS TO DEFENDANT STAR CLIPPERS, LTd.

Interrogatory:

4. Please state whether Defendant has any offices, whether owned or leased, in the United States. If so, please state the address, phone number and the number of employees at said office.

Response:

Discovery and investigation are ongoing. Star Clippers, Ltd., Corp. will provide information responsive to this request following its investigation.

ARGUMENT:

Interrogatory:

5. For Defendants’ offices, whether owned or leased in Florida, please state the address, phone number, number of employees and their positions at said office, and please describe with particularity all any and all business conducted at that office.

Response:

Defendant objects to this request as overbroad, irrelevant, burdensome and insufficiently limited in scope of subject matter inquiry to the extent it seeks information concerning all business conducted at offices owned or leased by Star Clippers, Ltd., Corp. in Florida. Notwithstanding and without waiving said objection, Defendant’s discovery and investigation are ongoing. Star Clippers, Ltd., Corp. will provide information responsive to the balance of this request following its investigation.

ARGUMENT:

Interrogatory:

9. Please state whether Defendant has ever litigated any lawsuit(s) in Luxembourg? If so, please state the name of the case(s) (case style), the type of case(s), the attorney(s) representing the Defendant, the name of the court the case(s) was/were filed in, the date of such filing(s), and the outcome of such case(s). Specifically denote which of these lawsuits are crewmember personal injury claims and what the resolution of those claims were.

Response:

Defendant objects to this interrogatory as insufficiently limited in scope of time frame and subject matter inquiry as it fails to indicate any time period. The interrogatory is further overbroad and irrelevant to the extent it seeks the names of the attorney(s) representing Defendant in lawsuits in Luxembourg and the resolution of those claims. Notwithstanding and without waiving said objections, Star Clippers, Ltd., Corp.’s investigation and discovery are ongoing.

ARGUMENT:

Interrogatory:

10. Please state whether any of the Defendants, their subsidiaries and/or affiliates, own any property (including berths) or have any offices (whether owned or leased) anywhere in the United States. If so, please state: (1) the address, phone number, and contact person; (2) the number of employees working at said location (in any capacity, including part time employment); (3) the date each property was purchased and/or office was opened; and (4) its purpose and/or intended use.

Response:

Defendant’s discovery and investigation are ongoing. Star Clippers, Ltd., Corp. will provide information responsive to the balance of this request following its investigation.

ARGUMENT:

Interrogatory:

11. Please state whether any of the Defendants and/or their subsidiaries, has ever been a Plaintiff in a lawsuit filed in the United States in the past 10 years. If so, please include the style of the case, case no., the court in which the action was filed, and a short description of the nature of the case, including the causes of action included in the complaint.

Response:

Defendant objects to this interrogatory on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for a 10 year period. The interrogatory is further overbroad, burdensome and irrelevant to the extent it seeks information regarding the nature of the case and causes of action included in each complaint. Notwithstanding and without waiving said objections, Defendant’s discovery and investigation are ongoing. Star Clippers, Ltd., Corp. will provide information responsive to the balance of this request following its investigation.

ARGUMENT:

Plaintiff and Counsel for Defendant have discussed this interrogatory response and are hopeful that Defendant will be able to moot any necessity to compel the above information by providing a responsive answer prior to the filing of a response to this motion to compel. The parties have agreed to limit this interrogatory in scope of time to the 5 year period preceding the date of the incident described in the complaint. In an abundance of caution however, Plaintiff should be provided a response to this request as it is relevant to determine whether or not the Defendant has purposefully availed itself of the protections/benefits of U.S. Courts although it is seeking to avoid their reach here. In the case of the U.S. based Defendants, this information is still relevant as the subject and discovery in other lawsuits can provide insight into the ties between the various Defendants herein. Plaintiff should be provided this response in advance of any jurisdictional deposition that will take place in this case and obviously in advance of the filing of a response to the Defendants’ Motion to Dismiss. Lastly, Defendant’s objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

Interrogatory:

14. State Defendants’ and their subsidiary’s, total gross revenues for each year from 2005 to the present, derived from passengers who reside in the United States and also specifically in Florida. As part of your answer, please include the source of information, (i.e. annual reports, stockholders reports, booking records, etc.)

Response:

Punitive damages are not pled in Plaintiff’s Complaint. As such, Plaintiff is not entitled to financial worth information. The request is further irrelevant and calls for the production of documents not reasonably calculated to lead to the discovery of admissible evidence.

Defendant further objects to this interrogatory on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for an approximate 8 year period.

ARGUMENT:

Plaintiff proposed limiting the time frame of this request, but Defendant opposes providing any information regarding its revenues and their sources. Plaintiff submits that this information is relevant to the jurisdictional inquiry as the sources of Defendant’s revenues will aid this Court in determining whether or not the Defendants are operating a business venture in Florida. This information is also relevant to Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. Lastly, Defendant’s objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

Interrogatory:

17. State the name, telephone number and address of all people, firms, corporations and/or entities located and/or conducting business in the United States and Florida that entered into a contract and/or agreement with any of the Defendants or their subsidiaries, for each year from 2005 to the present. For each contract and/or agreement, indicate: (a) its purpose; (b) the name of the officers and/or representatives who signed each contract; (c) the amounts paid under the contract; (d) the contract’s place of performance; and (e) the date the contract was signed.

Response:

Defendant objects to this interrogatory on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for an approximate 8 year period. The request is further overbroad and irrelevant to the extent it seeks the purpose of each contract, the name of the officers and/or representatives who signed each contract, the amounts paid under the contract, the contracts place of performance, and the date each contract was signed. Notwithstanding and without waiving said objections, Star Clippers GSA, Inc. is a General Sales Agent for Star Clippers Ltd. Star Clippers GSA, Inc.’s principal address is 760 NW 107^th Avenue, Suite 100, Miami, FL 33172.

ARGUMENT:

Plaintiff and Counsel for Defendant have discussed this interrogatory response and are hopeful that Defendant will be able to moot any necessity to compel the above information by providing a responsive answer prior to the filing of a response to this motion to compel. The parties have agreed to limit this interrogatory in scope of time and value such that Defendant represents there should be only one other responsive contract. In an abundance of caution however, Plaintiff should be provided a response to this request as it is relevant to determining the interrelationship between the Defendants and whether or not the Florida based defendants are truly independent or their separate status is purely a legal fiction. Plaintiff should be provided this response in advance of any jurisdictional deposition that will take place in this case and obviously in advance of the filing of a response to the Defendants’ Motion to Dismiss. Lastly, Defendant’s objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

Interrogatory:

21. Please state whether any of the Defendants and/or their subsidiaries have any bank accounts located in the United States. If so, please state: (1) the name of the banking institution; (2) the location of the branch; (3) account number; and (4) the date the account was opened.

Response:

Defendant objects to this interrogatory on the basis that it is overbroad, burdensome and insufficiently limited in scope of subject matter inquiry to the extent it seeks the account number, the location of the branch and the date the account was opened for any bank accounts located in the United States of Defendants and/or their subsidiaries. Notwithstanding and without waiving said objections, Star Clippers, Ltd. Corp, has bank accounts at Citibank in the United States utilized when United States passengers pay by credit card for a cruise.

ARGUMENT:

Defendant has provided Plaintiff with information concerning the identity of its banker, but refuses to provide any other identifying information about its account. This information is crucial for Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. In order to learn this information Plaintiff should be permitted to subpoena Defendant’s bank records, but cannot do so without the identifying information. Lastly, Defendant’s objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

AS TO DEFENDANT STAR CLIPPERS, GSA, INc.

Interrogatory:

Response:

ARGUMENT:

Interrogatory

Response:

Star Clippers GSA, Inc. has stipulated that it is a Florida Corporation. Plaintiff is not entitled to Defendant’s banking details.

ARGUMENT:

Plaintiff submits that this information is relevant to the jurisdictional inquiry as the sources of Defendant’s revenues will aid this Court in determining whether or not the Defendants are operating a business venture in Florida. This information is also relevant to Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. This information will further aid in revealing whether or not the Florida based entities are legal fictions aimed at shielding the non-resident Defendant from liability in U.S. Courts. Lastly, Defendant’s objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.
Interrogatory:

23. Please state the total amount of taxes paid by any of the Defendants and/or their subsidiaries, to the U.S. Federal Government or any State Government within the United States, in the past 5 years. Please provide the total amount of taxes paid per year and the entity responsible for tax liability.

Response:

Star Clippers GSA, Inc. has stipulated that it is a Florida Corporation. As such, this request is unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

ARGUMENT:

Plaintiff submits that this information is relevant to the jurisdictional inquiry as the sources of Defendant’s revenues and the taxes paid thereon will aid this Court in determining whether or not the Defendants are operating a business venture in Florida. This information is also relevant to Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. This information will further aid in revealing whether or not the Florida based entities are legal fictions aimed at shielding the non-resident Defendant from liability in U.S. Courts. Lastly, Defendant’s objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

AS TO DEFENDANT LUXEMBOURG SHIPPING SERVICES, S.a.

Interrogatory:

Response:

Punitive damages are not pled in Plaintiff’s Complaint. Plaintiff is not entitled to financial worth information. This request is irrelevant and calls for the production of information not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this interrogatory on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for an approximate 8 year period and seeks gross revenues derived from passengers in the United States and; specifically, in Florida.

ARGUMENT:

Interrogatory:

Response:

None with respect to Luxembourg Shipping Services, S.a.

ARGUMENT:

Interrogatory

19. Please list all business trips to the United States, undertaken by employees, agents, and/or representatives of the Non-U.S. based Defendants and/or their subsidiaries, in the past 5 years. For each trip, please state the purpose and destination of said trip and the name of the employee(s), agent(s), and/or representative(s) traveling on behalf of the Defendants.

Response:

Defendant objects to this interrogatory on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for a 5 year period. Defendant further objects on the basis that information responsive to this interrogatory is irrelevant to the jurisdictional analysis at issue within Defendants’ Motion to Dismiss and the underlying claim as a business trip to the United States alone is not a basis for personal jurisdiction over a party. See Sea Lift, Inc. v. Refinadora Costarricense de Petroleo, S.A., 729 F. 2d 989 (11^th Cir. 1986). Notwithstanding and without waiving said objection, none known as to Luxembourg Shipping Services, S.a.

ARGUMENT:

The information requested is relevant to determining whether or not personal jurisdiction exists in Florida over the Defendant. The case cited by Defendant would be pertinent if the Defendant had only taken one business trip to Florida to contract with the Florida based Deefendants. However, Plaintiff seeks to find out if the Defendant, its employees, and/or agents have made repeated business trips to Florida. This would indicate that the Defendant is conducting business in Florida. Further, continuous trips to Florida would amount to substantial and not isolated activity in Florida, thus justifying the exercise of this Court’s power under the general jurisdiction provision of Florida’s Long Arm Statute. See Future Tech Int’l, Inc. v. Tae Il Media, Ltd., 944 F. Supp. 1538, 1557-58 (S.D. Fla. 1996)(“Defendant [] and other representatives of [] and [] met with representatives of [] on multiple occasions in Miami in furtherance of their existing business relationship and in order to procure additional business. This pattern of activity cannot be fairly characterized as sporadic or isolated. The trips and business communications, which were spread out over a period of about a year, are “neither incidental nor insignificant” and therefore are sufficient to meet the standard of general jurisdiction under the controlling Florida long arm statute.”)

Interrogatory:

24. Please state the working financial relationship between Defendants. In so stating, please describe the cash flow between the entities, the hierarchy of the companies and their employees, including whom reports to whom between the two entities. Additionally, please include what documents this information is derived.

Response:

Defendant’s investigation and discovery are ongoing. Defendant will provide information responsive to this request following its investigation.

ARGUMENT:

Plaintiff and Counsel for Defendant have discussed this interrogatory response and are hopeful that Defendant will be able to moot any necessity to compel the above information by providing a responsive answer prior to the filing of a response to this motion to compel. In an abundance of caution however, Plaintiff is entitled to this response as no objection has been made. Plaintiff submits that this information is relevant to the jurisdictional inquiry as the financial relationships between the Defendants will aid this Court in determining whether or not the Defendant is operating a business venture in Florida. This information is also relevant to Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. This information will further aid in revealing whether or not the Florida based entities are legal fictions aimed at shielding the non-resident Defendant from liability in U.S. Courts. Further, Plaintiff should be provided this response in advance of any jurisdictional deposition that will take place in this case and obviously in advance of the filing of a response to the Defendants’ Motion to Dismiss.

In accord with Local Rule 7.1, Plaintiff contacted counsel for Defendants and all of Defendant’s objections were discussed. Plaintiff and Defendant were able through cooperation to limit the issues for the Court to the interrogatory responses herein.

WHEREFORE, strong>Plaintiff respectfully requests this Honorable Court compel the Defendants to provide better and/or more complete answers to the interrogatories above.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Fax: (305) 373-6204
By: s/ Eric C. Morales
ERIC CHARLES MORALES
FLORIDA BAR NO. 91875

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