Milena Efremova v. Carnival Corporation, et al.

February 10, 2012

Milena Efremova v. Carnival Corporation, et al.

Response to Motion to Dismiss

In this case a seafarer was injured while working aboard the Defendant Carnival’s vessel. The Plaintiff alleged causes of action under the Jones Act, Unseaworthiness, Doctrine of Maintenance and Cure, and the Seaman’s Wage Act. Multiple parties were named as Defendants in the case. In their Motion, the Defedants argued that the Court lacked jurisdiction over them and that they had not been properly served. In this response, attorney Carlos Llinas counters these arguments by demonstrating that the Defendants waived their right to challenging service and failed to make an adequate argument regarding jurisdiction.

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
IN AND FOR MIAMI DADE COUNTY, FLORIDA
CASE NO. 11 – 37365 CA 05
MILENA EFREMOVA,
Plaintiff,

vs.

CARNIVAL CORPORATION,
STEINER TRANSOCEAN LIMITED,
STEINER LEISURE LIMITED, and
STEINER TRANSOCEAN U.S., INC.,
Defendants.
_________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS STEINER LEISURE LIMITED AND STEINER TRANSOCEAN U.S. INC. MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

COMES NOW, Plaintiff, MILENA EFREMOVA, by and through undersigned counsel and hereby files her Response in Opposition to Defendants Steiner Leisure Limited and Steiner Transocean U.S., Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint. In support thereof, Plaintiff alleges as follows:

I. BACKGROUND.

This matter arises out of severe injuries sustained by Plaintiff while working as a hairdresser in a Carnival cruise ship spa.[1] On or about December 8, 2008, a fire safety door on the vessel crushed Plaintiff’s index finger.

2. On December 11, 2011, Plaintiff filed an amended complaint against the shipowner, Carnival Corporation and her employer(s) (Steiner Transocean Limited, Steiner Leisure Limited and Steiner Transocean U.S., Inc.).

In the Amended Complaint, Plaintiff is alleging Negligence under the Jones Act (Count I), Unseaworthiness (Count II), Failure to Provide Maintenance and Cure (Count III), Failure to Treat (Count IV) and Failure to Pay Wages in Violation of the Seaman’s Wage Act (Count V).

On January 17th, 2012, Defendants Steiner Leisure Limited, and Steiner Transocean U.S., Inc., filed a boilerplate Motion to Dismiss Plaintiff’s Amended Complaint. In the motion, Defendant purports to make a “special appearance” and challenges the Court’s personal jurisdiction.

Simultaneously, however, in the same Motion, Defendant seeks affirmative relief by arguing the merits of Plaintiff’s claims, asserting that the Complaint fails to state a cause of action for which relief can be granted, and challenging Counts I – V of the Complaint.

Personal jurisdiction and service arguments. As shown below, in light of the fact that Defendants’ Motion challenges the merits of Plaintiff’s claims (seeking affirmative relief), Defendants have waived their special appearance and with it, their personal jurisdiction and service arguments. On these grounds alone, Defendant’s Motion to Dismiss for lack of jurisdiction and improper service fails.

Moreover, even in the absence of the waiver, the fact that Defendant’s jurisdictional argument consists of a single sentence stating “[t]here is lack of in personal jurisdiction and the Complaint is subject to dismissal” is insufficient to raise a proper jurisdictional challenge.

Merits arguments. Defendant’s Motion to Dismiss is unfounded and should be denied in its entirety. Plaintiff has pled sufficient facts in support of her claims, giving Defendant notice of what the claims are and the grounds upon which they rest.

II. STANDARD OF REVIEW.

A motion to dismiss requests the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal. Nero v. Continental Country Club R.O., Inc., 979 So. 2d 263 (Fla. 5th DCA 2007). Dismissal should be granted only when it has conclusively been demonstrated that plaintiff can prove no set of facts whatsoever in support of the cause of action. Wendt v. La Costa Beach Resort Condominium Ass’n, Inc., 14 So. 3d 1179 (Fla. Dist. Ct. App. 4th Dist. 2009)

In reviewing a motion to dismiss, this court’s “gaze is limited to the four corners of the complaint.” Gladstone v. Smith, 729 So. 2d 1002, 1003 (Fla. 4th DCA 1999). The facts alleged in the complaint must be accepted as true and all reasonable inferences are drawn in favor of the pleader. See id.

III. APPLICABLE LAW. This is an admiralty case. As such, the substantive claims in this matter are governed by the General Maritime Laws of the United States.

As a preliminary matter, it is important to highlight the fact that this matter is an admiralty case. Thus, although the case was filed in Florida state court, the General Maritime Laws of the United States, comprised primarily of federal common law, governs the substantive claims in this matter. As the Supreme Court has stated, “Drawn from state and federal sources, the general maritime law is an amalgam of traditional common law rules, modifications of those rules, and newly created rules. East River Steamship Corp., v. Transamericam Delaval, Inc., 476 U.S. 858, 864-65 (1986); see also Potashnik –Bardget Dredging, Inc. v. Whitfield, 269 So. 2d 36, 40 (Fla. 4th DCA 1972):

State courts can exercise jurisdiction over actions arising under the Jones Act and general maritime law, but federal principles of law control such actions and must be applied by both [state] trial and appellate courts.

Id. (emphasis added).

IV. DEFENDANTS’ ARGUMENTS CHALLENGING JURISDICTION AND SERVICE ARE UNFOUNDED.

Id.A.Defendants have waived their personal jurisdiction and service arguments. The fact that Defendants combined their jurisdictional challenge with argument on the merits concerning Plaintiff’s substantive claims constitutes a waiver of both the personal jurisdiction and service defenses.

Taking a position that is inconsistent with an objection to personal jurisdiction has been deemed a waiver of the objection. Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996) (“It is well-established that if a party takes some step in proceedings which amounts to a submission to the court’s jurisdiction, then it is deemed that the party waived his right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction).

This is particularly the case with Motions to Dismiss. As the Florida Supreme Court succinctly explained in the matter of Sternberg v. Sternberg, 190 So. 486 (Fla. 1939):

the law seems to be well settled that when a person appears specially for the purpose of presenting the question of jurisdiction of the court, he must restrict his motion to the grounds of such jurisdiction and must not include therein some other ground that recognizes the jurisdiction of the court over the person and amounts to a general appearance in the cause. See Garner v. Garner, 83 Fla. 143, 90 So. 819. The motion in the case at bar, while intended by counsel to be limited to the question of quashing the service by publication, which was fully supported by the record, in fact went much further and included additional relief in that it sought a dismissal of the bill of complaint and likewise sought an order granting suit money and counsel fees in the suit then being considered, thereby invoking the jurisdiction of the court.

If the defendant takes some step in the proceedings which amounts in law to a submission to the Court’s jurisdiction, the fact that the defendant insists that he never intended so to do, or to otherwise admit the jurisdiction of the court over his person, or that he contends that he appeared specially and not generally, is not sufficient to preclude the court from considering and holding that the defendant appeared generally in contemplation of law. See Rorick v. Stilwell, 101 Fla. 4, 133 So. 609. This Court is committed to the rule that any pleading to the merits of the cause, whenever made, in law constitutes a general appearance and thereby waives the question of defects in the service raised by the special appearance or motion to quash or set aside. See Ortell v. Ortell, 91 Fla. 50, 107 So. 442; Casper v. Bonbright, 94 Fla. 1237, 115 So. 540; Ray v. Trice, 48 Fla. 297, 37 So. 582; Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 So. 670; Smith v. Bulkley, 15 Fla. 64. We therefore hold that the motion made and presented by the defendant in the court below pursuant to the special appearance which sought an order (a) dismissing the bill of complaint, and (b) an order granting defendant below suit money and attorneys’ fees, in law, was equivalent to ageneral appearance in the cause and the lower court was correct in so holding.

Id. (emphasis added); see also Bailey, Hunt, Jones & Busto v. Scutieri, 759 So. 2d 706 (Fla. 3d DCA 2000) (“The longstanding rule in Florida has been that if a defendant files any pleading to the merits of the case the defendant waives all challenges to service of process or jurisdiction”) (emphasis added); see also Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998):

the requirement of personal jurisdiction is intended to protect a defendant’s liberty interests. Because the defense is a personal right, it may be obviated by consent or otherwise waived. A defendant may manifest consent to a court’s in personam jurisdiction in any number of ways . a defendant who goes beyond matters of defense and seeks affirmative relief waives a previously asserted objection to the personal jurisdiction of the court. Thus a majority of federal courts have held that the filing of a permissive counterclaim is a request for affirmative relief which waives an objection to personal jurisdiction notwithstanding that the objection is timely made.

Here, like the Defendant in Sternberg, Defendants purported to make a special appearance for the purpose of challenging jurisdiction and service. However, they failed to restrict their motion to jurisdiction and service, and instead included additional relief arguing the merits of Plaintiff’s substantive claims. Pursuant to Sternberg such conduct is inconsistent with a personal jurisdiction objection and tantamounts to a general appereance, resulting in a waiver of the jurisdictional and service arguments. See Rorick v. Stilwell, 101 Fla. 4 (Fla. 1931) (“A general appearance is entered in a cause by the making of any motion which involved the merits.”).

On this ground alone Defendant’s Motion to Dismiss for lack of personal jurisdiction and/or failure to be properly served must be denied.

B. Even if (for the sake of the argument) Defendants have not waived their defense; Defendants’ Motion to Dismiss for lack of personal jurisdiction is deficient.

Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction consists of a single sentence which provides as follows: “There is lack of in personam jurisdiction and the Complaint is subject to dismissal.” This in no way is sufficient to raise a proper jurisdictional challenge.

First and foremost, Defendant’s sentence is devoid of any information sufficient to overcome the jurisdictional allegations in Plaintiff’s Amended Complaint. Taking these allegations as true, they provide as follows:

Defendants, at all times material hereto, personally or through an agent;

a. Operated, 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;
b. Were engaged in substantial activity within this state;
c. Operated vessels in the waters of this state;
d. Committed one or more of the acts stated in Florida Statutes, Sections 48.081, 48.181 or 48.193;
e. The acts of Defendants set out in this Complaint occurred in whole or in part in this county and/or state.

3. Defendants are subject to the jurisdiction of the Courts of this state.

Id. (Exhibit “A”).

Defendants jurisdictional argument (in one sentence) does not provide any information (or required factual evidentiary support) to overcome any of these allegations in the complaint. For instance, Defendant provided no evidence that they do not “operate, conduct, engage or carry out a business venture in this state.” Moreover, their jurisdictional argument included no documents and no affidavits to support it. In the absence of this evidence, and taking Plaintiff’s allegations as true, Defendant’s personal jurisdiction argument is deficient and must be denied. See Hilltopper Holding Corp. v. Estate of Cutchin, 955 So. 2d 598(Fla. 2d DCA 2007):

Initially, the plaintiff bears the burden of pleading a basis for jurisdiction under section 48.193. Venetian Salami, 554 So. 2d at 502. The plaintiff may do so either by tracking the language of section 48.193 without pleading supporting facts, id., or by alleging specific facts that demonstrate that the defendant’s actions fit within one or more subsections of section 48.193. If the plaintiff meets this pleading requirement, the burden shifts to the defendant to file a legally sufficient affidavit or other sworn proof that contests the essential jurisdictional facts of the plaintiff’s complaint Venetian Salami, 554 So. 2d at 502; Kin Yong Lung Indus. Co., 816 So. 2d at 666. To be legally sufficient, the defendant’s affidavit must contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Capital One Fin. Corp. v. Miller, 709 So. 2d 639, 640 (Fla. 2d DCA 1998) (noting that the facts in the defendant’s sworn affidavit are to be taken as true in determining whether the burden shifts to the plaintiff to prove jurisdiction).

If the defendant does not fully dispute the jurisdictional facts, the motion must be denied

Id.(emphasis added).

Bottom line, Defendants jurisdictional argument (in one sentence) is nothing more than a
legal conclusion. Legal conclusions rather than factual allegations are insufficient to contest jurisdiction. Hilltopper Holding Corp. v. Estate of Cutchin, 955 So. 2d 598(Fla. 2d DCA 2007)(“Any such allegations would be legal conclusions rather than factual allegations and would be insufficient to contest jurisdiction”). [2]

C. Defendants service arguments are unfounded. All Defendants have received noticed of this action. The fact that they have hired an attorney to appear on their behalf shows that they have been properly notified.

With respect to its service argument, Defendant’s Motion to Dismiss provides as follows: “[t]here is insufficient service of process and insufficiency of process upon these named Defendants by serving Steiner Transocean Limited. Plaintiff has not properly served these named Defendants. Service of process is defective and deficient.”

Defendant’s assertion is completely untrue.

1.Defendant Steiner Transocean U.S. Inc. was properly served. Plaintiff served Steiner Transocean U.S. Inc.’s registered agent, Gladys Rodriguez on December 7, 2011.

Defendant Steiner Transocean U.S. Inc. is a Florida corporation registered to do business in Florida. Its principal address is 770 South Dixie HWY Suite 200, Coral Gables, FL 33146. See Exhibit “B,” Florida Department of State Division of Corporations information for “Steiner Transocean U.S., Inc.” As listed in the Department of State filings, its registered agent is Gladys Rodriguez. See Id. Defendant’s registered agent’s address is also 770 South Dixie Hwy, Suite 200, Coral Cables, FL 33146. See Id.

On December 7, 2011 at 2:05 pm, Plaintiff served Defendant Steiner Transocean U.S. Inc.’s registered agent Gladys Rodriguez, at 770 South Dixie Hwy, Suite 200, Coral Gables, FL 33146. See Affidavit of Service, attached hereto as Exhibit “C.” This constitutes proper service.

It is well settled law that service on a corporation’s registered agent is effective notice to the corporation of the pending litigation. Cam -La, Inc. v. Fixel, 632 So. 2d 1067(Fla. 3d DCA 1994). Thus, any assertion that Defendant Steiner Transocean U.S. Inc. was not properly served is incorrect. See Cam -La, Inc., 632 So. 2d 1067(Fla. 3d DCA 1994):

Because a corporation is a fictional entity, there can be no personal service on a corporation. “Service can only be made on some representative or agent of the corporation designated by law.” Service on a corporation’s registered agent is effective notice to the corporation of the pending litigation. § 48.081(3), 48.091, Fla. Stat. (1989); see also Service is not vitiated by the registered agent’s failure to give the corporation notice that it had received suit papers on its behalf.

In the instant case, Cam-La designated Garfield as its registered agent as required by sections 48.091(1) and 607.0501(1), Florida Statutes (1989). This authorized Garfield to receive service of process on behalf of Cam-La.See § 48.091(2), Fla. Stat. (1989) . Cam-La did not change its registered agent nor did Garfield resign her agency appointment. See § 607.0502, Fla. Stat. (1989). Therefore, Garfield was properly served as the registered agent of Cam-La, see § 607.0504, Fla. Stat. (1989), and the final judgment could not be void for lack of notice.

Id. (emphasis added).

2.Defendant Steiner Leisure Limited was properly served. Plaintiff served Steiner Leisure Limited at its Coral Gables, Florida office on December 7, 2011.

Defendant Steiner Leisure Limited is a Corporation with its principal place of business in Coral Gables, Florida. As represented to the United States Securities and Exchange Commission, it’s address is 770 S. Dixie Highway, Suite 200, Coral Gables, FL 33146. See Exhibit “D,” Defendant Steiner Leisure Limited “Statement of Changes in Beneficial Ownership of Securities” reported to the United States Securities and Exchange Commission. [3]

As Exhibit “D” further shows, Defendant Steiner Leisure Limited has also represented to the United States government it is under the “care of” Steiner Management Services, located at 770 S. Dixie Highway, Suite 200, Coral Gables, FL 33146.

On December 7, 2011, at 2.05 pm, Plaintiff served Defendant Steiner Leisure Limited by Serving Steiner Management Services (the entity it represents to the United States government it is under the ‘care of’) as Registered Agent, 770 S. Dixie Highway, Suite 200, Coral Gables, FL 33146. See Affidavit of Service, attached hereto as Exhibit “E.” This constitutes proper service.

Long-standing jurisprudence, particularly United States Supreme Court decisions following Mullane v. Central Bank & Trust Co, 339 U.S. 306 (1950), establish that although the U.S. Constitution does not require any particular means of service of process, the method selected must be reasonably calculated to provide notice and an opportunity to respond. See Mullane, 339 U.S. at 314:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to be heard to present their objections. The reasonableness and hence the constitutional validity of any chosen method may be defended on the grounds that it is in itself reasonably to inform those affected.

Id. (emphasis added). In proper circumstances, this broad constitutional principle unshackles the courts from anachronistic methods of service. See Rio Props. v. Rio Int’l Interlink, 284 F. 3d 1007(9th Cir. 2002).

Herein, Plaintiff’s service complies with due process requirements. First, Plaintiff’s service was reasonably calculated to provide notice: Plaintiff served Defendant Steiner Leisure Limited at its principal place of business in Florida (the permanent address listed in its website and represented to the United States government as its primary office). See Exhibits “D” and “F.”

Second, Plaintiffs service was reasonably calculated to provide Defendant Steiner Leisure Limited an opportunity to respond: the fact that Defendant is filing motions to dismiss, through its attorneys, is clear evidence that it has notice of the action pending against it and has been therefore given an opportunity to be heard and present objections.

IV. DEFENDANTS’ MERITS ARGUMENTS.

A. Count I (Jones Act Negligence). Determination of the identity of Plaintiff’s employer, without the benefit of discovery, is premature at the Motion to Dismiss stage. Long standing maritime jurisprudence allows a Plaintiff-seafarer to sue multiple parties ‘as potential employers.’ Under the borrowed servant doctrine, the identity of the Jones Act Defendant is question of fact for the jury.

Count I of the Complaint alleges Negligence under the Jones Act against all Defendants. In its Motion to Dismiss Defendants Steiner Leisure Limited and Steiner Transocean U.S. Inc., allege as follows: “These named Defendants were not the Plaintiff’s employers and have no relation to Plaintiff’s employment with Defendant, Steiner Transocean Limited’s Claims for Jones Act.”

Defendants make these allegations without supporting documentation or any evidence whatsoever. Just because Defendants say they are not Plaintiffs employer, neither Plaintiff nor the Court should take their word for.

In fact, long-standing maritime jurisprudence allows a Plaintiff-seafarer to sue multiple Defendants as “alleged potential Jones Act employers.” Under the “borrowed servant doctrine” the question of the identity of the Jones Act employer is a question of fact for the jury.

The Jones Act.The Jones Act, 46 U.S.C. §30104, grants seamen who suffered personal injury in the course of their employment the right to seek damages in a jury trial against their employers. The employer under the Jones Act is liable in damages for injury resulting in whole or in part from the negligence of its officers. Jacob v. New York, 315 U.S. 752, 755 (1942); Wilburn v. Maritrans GP Inc., 139 F. 3d 350 (3d Cir. 1998). Thus, under the Jones Act, the employer has a fundamental duty to provide seamen with a reasonable place to work. Davis v. Hill Engineering, Inc., 549 F. 2d 314 (5th Cir. 1977). This duty is absolute and non-delegable.

The Jones Act Defendant. A Jones Act lawsuit may be properly filed only against the seaman’s employer. Corsair v. Stapp Towing Co., Inc., 228 F. Supp. 2d 795 (S.D. Tex. 2002). Resolution of the issue concerning who is the proper Jones Act employer is a mixed question of law and fact, within the province of the jury upon instructions by the trial court. Thomas J. Schoenbaum, Admiralty and Maritime Law, Fourth Edition, §4-23, p. 282. These questions of fact include ascertaining: 1) who had the power to engage the seaman; 2) who determined the wage to be paid; 3) who had the power of dismissal; and 4) who had the right to control the seaman’s on-the-job conduct. Health v. American Sail Training Association, 644 F. Supp. 1459 (D.R.I. 1986).

These questions cannot be answered at this juncture without the benefit of discovery. Their resolution at a motion to dismiss is premature. Instead, as shown below, long-standing maritime jurisprudence requires that they be submitted to the jury.

The borrowed servant doctrine. Because this is an admiralty case, the borrowed servant doctrine applies. Under the borrowed servant doctrine, courts are required to carefully scrutinize the employment relationship of seamen to determine who is the real employer so that a Jones Act employer may not escape liability by delegating authority or using a third party. For example, in Hall v. Diamond M Co., 635 F. Supp. 362 (E.D. La. 1986), the seaman plaintiff was an anchor handler who was employed by a subcontractor of an oil and gas drilling company. In determining that the plaintiff’s true employer was the subcontractor and not the drilling company, the court carefully considered the issue of whether the seaman was the “borrowed servant” of the drilling company, stating as follows:

The borrowed servant doctrine is a venerable one in maritime law, having been around since at least 1909. The purpose of the rule is to place the risk of a workers injury on his actual rather than his nominal employer by permitting the injured worker to recover from the company that was actually directing his work. The rule therefore allows plaintiffs like Mr. Hall to sue a number of “employers”, forcing them to argue their respective culpability to the jury.

Id. (emphasis added).

Therefore, here, pursuant to the borrowed servant doctrine, Plaintiff properly sued multiple potential employers (Steiner Transocean U.S., Inc., Steiner Leisure Limited, and Steiner Transocean Limited). Determination of whether one or all of these Defendants are the real Jones Act employer(s), is a question of fact for the jury.

Defendants assertions that they are not the Plaintiffs employer thus fail, and their Motion to Dismiss on this ground should be denied.

B. Count II. The claim of Unseaworthiness is directed at the owner, operator and demise charter of the vessel. At this juncture, without the benefit of discovery, it is premature to decide which party was the owner, operator and demise charterer of the vessel. Therefore, Defendants’ assertions that they are not the proper parties for the unseaworthiness claim cannot be properly decided at a motion to dismiss stage.

Count II of the Complaint seeks relief pursuant to the doctrine of unseaworthiness. Under the maritime doctrine of unseaworthiness the vessel, her owner and the vessel’s operator are liable for injuries received by a seaman in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. The Osceola, 189 U.S. 158 (1903). The duty of unseaworthiness is absolute and independent of negligence. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). The test for an unseaworthy condition is whether the vessel, equipment or appurtenances were ‘reasonably fit for their intended use” Jordan v. United States Lines, Inc., 738 F. 2d 48 (1st Cir. 1984).

In its Motion to Dismiss, Defendants assert, in part: “Given that these Defendants are not the vessel owner nor operator, Plaintiff cannot pursue a claim for Unseaworthiness.” Defendants’ assertions, however, present questions of fact beyond the four corners of the complaint which – without the befit of discovery – are premature at a motion to dismiss stage.

First, the question of seaworthiness is a question of fact for the jury. Jordan v. United States Lines, Inc., 738 F. 2d 48 (1st Cir. 1984); see also Valm v. Hercules Fish Products, Inc., 701 F. 2d 235 (1st Cir. 1983).

Second, while it is true that the shipowner of a vessel is the entity at which the claim of unseaworthiness is normally directed to;[4] if a party (other than the ship-owner) is found to have operational control over areas/sections of the ship, that party can also be found liable for those areas unseaworthiness. Thus, the employer(s) of the seaman (who might not be the owners of the vessel), in this case Defendants Steiner Transocean U.S., Inc. and Steiner Leisure Limited, can also be found liable for the unseaworthy condition of the ship (i.e. faulty safety door) if there is evidence that these employers were demise charterers (lessees in control of the section of the ship where the incident occurred).[5] See Rodriguez McAllister Bros., Inc., 736 F. 2d 813 (1st Cir. 1984).

Here, whether Defendants were demise charterers of the section of the ship were the incident occurred, is a question of fact which cannot be properly established without the benefit of discovery.

Plaintiff anticipates discovery will reveal that Defendants leased a section of the Carnival ship for the purpose of operating a spa center. Plaintiff further expects discovery to reveal that the door in question (the unseaworthy condition), was in the area operated and controlled by Defendants.

Therefore, because all of these issues present questions of fact which are beyond the four concerns of the complaint, they are premature at a motion to dismiss stage.

C.Defendant’s argument concerning the “failure to join indispensable parties” has no merit.

In its Motion to Dismiss, Defendant asserts as follows: “Plaintiff has failed to join indispensable parties and all claims are subject to dismissal.” Defendants’ assertion does not contain any facts to explain which parties – if any – Plaintiff has failed to join (and if so why these parties should be considered indispensable and why that would warrant the dismissal of all claims). In the absence of this information, this last argument is nothing more than a boilerplate and frivolous allegation.

D. Counts III and IV. Contrary to Defendants’ assertions, there is basis in law and fact for the claims for a) Failure to Provide Maintenance and Cure (Count III), and b) Failure to Treat (Count IV).

In its Motion to Dismiss, Defendant asserts in part that “there is no basis in law or fact for the claims of “Failure to Provide Maintenance and Cure” as alleged in Count III of the Complaint.

Maintenance and cure is an ancient common-law maritime remedy for seamen who are injured while in the service of the vessel. “Maintenance” is the right of a seaman to receive food and lodging if he falls ill or becomes injured while in the service of the ship. “Cure” is the right to necessary medical services. A claim for maintenance and cure concerns the vessel’s owner’s failure to meet its obligation to provide food, lodging, and medical services of a seaman injured while serving on the ship. Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009). The Eleventh Circuit Court of Appeals has described the action as follows: “[t]he seaman’s action for maintenance and cure may be seen as one designed to put the sailor in the same position as he would have been had he continued to work: the seamen receives a maintenance remedy because working seamen normally are housed and fed aboard ship; he recovers payment for medical expenses in the amount necessary to bring him to maximum cure; and he receives an amount representing his unearned wages for the duration of his voyage or contract period. Isbrandtsen Marine Servs. v. M/V Inagua Tania, 93 F. 3d 728(11th Cir. 1996).

This common-law obligation to seamen is justified on humanitarian and economic grounds. Atlantic Sounding v. Townsend, 557 U.S. 404 (2010) (“If some provision [is] not made for seamen in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment”). Thus, as the Supreme Court recently explained in the seminal case of Atlantic Sounding, the failure of a vessel owner to provide maintenance and cure to a seaman warrants the imposition of punitive damages[6]. See Id., at 2575:

Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law.

1.There are sufficient allegations in the complaint indicating Defendants’ failure to pay maintenance and cure (Count III). Further, the record evidence in this case shows Defendants refused to pay maintenance and cure, despite lack of information concerning whether Plaintiff had reached “maximum medical cure.”

The duty to pay maintenance and cure commences when the seaman falls ill or is injured and leaves the ship. Morales Garijak, Inc., 829 F. 2d 1355 (5th Cir. 1987). This duty continues until the seaman is cured or, if there is permanent impairment, until he reaches the point of “maximum cure” and/or “maximum medical improvement.” Farrel v. United States, 336 U.S. 511 (1949). The point of maximum cure is a medical determination, not a legal one. Doubts are to be resolved in favor of the seaman. See Breese v. AWI, Inc., 823 F. 2d 100, 104-05 (5th Cir. 1987) (“This is a medical question, not a legal one; and therefore reliance on the advise of counsel, as opposed to the advise of a physician, is insufficient to constitute a reasonable investigation of a seaman’s right to maintenance and cure”). Therefore, in order to legally stop its payments of maintenance and cure to the Plaintiff, a Defendant-shipowner must have a medical declaration from the seaman’s physicians declaring that he has reached the point of “maximum cure.” Gilkin v. United States, 764 F. Supp. 261 (E.D.N.Y. 1991).

An the employer’s termination of maintenance and cure payments, despite having knowledge that the seaman’s treating physicians have not declared him at “maximum cure,” has been construed by courts as willful and arbitrary refusal – warranting the imposition of punitive damages. Hines v. J.A. LaPorte, Inc., 820 F. 2d 1187 (11th Cir. 1987) (finding that Defendant’s termination of cure payments – despite lack of information concerning whether he had reached maximum medical cure – was arbitrary and in bad faith, warranting the imposition of punitive damages).

As Plaintiff’s employer(s), Defendants are legally responsible for the payment of Plaintiff’s maintenance and cure. Here, because Defendants are Plaintiff’s alleged employers, they are liable for all damages resulting from Plaintiffs’ failure to receive maintenance and cure. See Morales v. Garijak, 829 F. 2d 1355 (5th Cir. 1987) (The duty of payment of maintenance and cure is imposed on the employer).

The Amended Complaint. Here, the Amended Complaint succinctly alleges facts showing that Defendants have failed to meet its obligation to pay maintenance and cure. For example, paragraphs 22 – 24 of Count III (Exhibit “A”), provides as follows:

Under the General Maritime Law, Plaintiff, as a seamanwomen, is entitled to recover maintenance and cure from Defendants, until Plaintiff is declared to have reached maximum possible cure. This includes unearned wages (regular wages, overtime, vacation pay and tips), which were reasonably anticipated to the end of the contract or voya