C.H. and G.H., v. Carnival Corporation, Out Island Charters NV, and XYZ Corporations

Lipcon, Margulies & Winkleman, P.A

May 04, 2015

C.H. and G.H., v. Carnival Corporation, Out Island Charters NV, and XYZ Corporations

Response in Opposition

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

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-CV-22754-RNS

C.H. and
G.H.,
Plaintiffs,

v.

CARNIVAL CORPORATION,
OUT ISLAND CHARTERS NV, and
XYZ CORPORATION(S),
Defendants.

_________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT OUT ISLAND CHARTERS NV MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

COMES NOW, Plaintiffs, C.H. and G.H., by and through their undersigned counsel, hereby file Plaintiffs’ Response in Opposition to Defendant, OUT ISLAND CHARTERS N.V., Motion to Dismiss for Lack of Personal Jurisdiction [D.E. 19], and in support thereof, Plaintiffs state as follows:

DEFENDANT OUT ISLAND CHARTERS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD BE DENIED BECAUSE OUT ISLAND AND ITS OWNERS HAVE BEEN ENGAGED IN CONTINUOUS AND SYSTEMATIC BUSINESS WITH FLORIDA BASED CRUISE LINES SINCE AS EARLY AS 1970. MOST IMPORTANTLY, OUT ISLAND HAS EXPRESSLY CONSENTED TO PERSONAL JURISDICTION IN FLORIDA AND VENUE IN THIS DISTRICT.

This matter arises out of injuries sustained by Plaintiffs, C.H. and G.H., during their cruise vacation aboard Defendant, Carnival Corporation (hereinafter “Carnival”) cruise ship, M/V Carnival Breeze. As part of the cruise vacation experience, Carnival offered Plaintiff the opportunity to go on various excursions from the M/V Carnival Breeze. [D.E. 1]. Plaintiffs purchased tickets for a shore excursion offered, promoted, and sold directly by Carnival. Specifically, Plaintiffs purchased tickets for the subject shore excursion through Carnival’s website (www.carnival.com).

On or about August 31, 2013, Plaintiffs participated in the excursion which was operated by Defendant, Out Island Charters NV. During this excursion, Plaintiff C.H., was severely injured when the vessel leaped over a wave causing the Plaintiff to be elevated off his seat and slam back into his seat when the vessel landed back into the water.

On the date of the alleged incident, Plaintiff C.H. suffered severe injuries, when the subject shore excursion vessel was allegedly operating at unreasonably unsafe speeds through poor and dangerous ocean conditions. As a result of the Plaintiff C.H. incident, H.’S wife, G.H., suffered a loss of her husband’s services, companionship, love, affection, support and consortium. [¶ 20, D.E. 1].

Based on the foregoing, on July 25, 2014, Plaintiffs filed the instant negligence action against Defendants, Carnival, Island Charters, and XYZ Corporation(s). [D.E. 1].

Then, on September 19, 2014, Defendant, Out Island Charters NV, filed a motion to dismiss for lack of personal jurisdiction. [D.E. 19].

On November 6, 2014, this Honorable Court stayed ruling on Out Island’s Motion to Dimiss to allow Plaintiffs to conduct jurisdictional discovery on Out Island Charters N.V. [D.E. 35].

Limited jurisdictional discovery has revealed that the owners of Out Island Charters has been doing business by and through Florida based cruise lines since 1970, which includes, but not limited to the following: (i) 95% of Out Island Charters revenues are derived from cruise ship passengers; (ii) an agency relationship between Carnival and Out Island Charters; (iii) agency relationships and common ownership between Out Island Charters and other shore excursion entities located in St. Thomas, U.S. Virgin Islands; (iv) Out Island Charters does business with other U.S. based cruise lines; and (v) Out Island Charters has previously availed themselves of the protections and benefits of this forum and the laws of the United States.

Memorandum of Law

A plaintiff’s burden in alleging personal jurisdiction is to plead sufficient material facts to establish the basis for exercise of such jurisdiction. Future Technology Today, Inc. v. OSF Healthcare Systems, 218 F. 3d 1247 (11th Cir. 2000). First, the plaintiff must allege sufficient jurisdictional facts in his complaint to initially support long arm jurisdiction before the burden shifts to the defendant to make a prima facie showing of the inapplicability of the statute. If the defendant sustains this burden, the plaintiff is required to substantiate the jurisdictional allegations in the complaint by competent proof. Id., at 1249.

Generally, when performing a jurisdictional analysis pursuant to a long-arm statute, Florida courts must engage in a two-part analysis. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The Court must first determine whether the party has alleged facts sufficient to fall within the scope of Florida’s long arm statute, § 48.193. If the requirements of the long arm statute are satisfied, then the court must inquire as to, (1) whether defendant has satisfied sufficient “minimum contacts” with the state of Florida; and (2) whether the exercise of this jurisdiction over defendant would offend “traditional notions of fair play and [cause] substantial injustice.” Id., at 630-31 quoting, International Shoe v. Washington, 326 U.S. 310 (1945). Where the evidence conflicts, all reasonable inferences must be construed in favor of the Plaintiff. Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F. 3d 1357, 1360 (11th Cir. 2006).

Florida’s Long Arm-Statute. Florida’s long arm-statute contains two provisions that confer personal jurisdiction over a non-resident defendant. The first, Florida Statute section 48.193(1),[1] also known as the specific jurisdiction statute, confers jurisdiction if a party’s activities in the forum are related to the cause of action alleged in the complaint. Consolidated Development Corporation v. Sherrit, Inc., 216 F. 3d 1286 (11th Cir. 2000). Although the term ‘arising from’ is somewhat broader than the concept of proximate cause, under Florida law there must nevertheless be some direct affiliation, nexus or substantial connection between the cause of action and the activities within the state.” Sun Trust Bank v. Sun Intl’ Hotels, Ltd., 184 F. Supp. 2d 1246, 1269 (S.D. Fla. 2001). This kind of jurisdiction is often referred to as “connexity jurisdiction,” since it requires a causal connection between defendant’s activities in the forum statute and the plaintiff’s cause of action. American Overseas Marine Corp. v. Braintree Maritime Corp., 632 So. 2d 1124, 1127 (Fla. 3d DCA 1994).

The second, Florida Statute section 48.193 (2), is the general jurisdiction statute. Where specific jurisdiction cannot be exercised, a court in Florida may exercise over a non-resident defendant only where general jurisdiction can be established. American Overseas, 632 So. 2d, at 1127. “General jurisdiction, as distinguished from specific jurisdiction, does not require that the plaintiff’s cause of action arise out of the non-resident defendants business contacts with [Florida].” Id., at 1127. See also Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA) (the general jurisdiction statute does not require connexity between a Defendant’s activities and the cause of action). General personal jurisdiction, thus, arises from a defendant’s contacts with the forum that are unrelated to the cause of action being litigated. Consolidated Development Corporation v. Sherrit, Inc., 216 F. 3d 1286 (11th Cir. 2000).

Section 48.193(2), provides in part:

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly intrastate, or otherwise, is subject to the jurisdiction of the Courts of this state, whether or not the claim arises from that activity.

In order to obtain jurisdiction under the general jurisdiction statute, therefore, the defendant must be found to have maintained “continuous and systematic general business contacts” with the forum, so it can properly be considered to be present in the forum. American Overseas Marine Corp., 632 So. 2d 1124, 1127 (Fla. 3d DCA 1994). In construing the requirement of “substantial and not isolated activity,” courts in Florida have harmonized this language with the constitutional due process requirements annunciated by the United States Supreme Court. Nichols v. Paulucci, 652 So. 2d 389 (Fla. 5th DCA 1995), citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984):

In Helicópteros, the Supreme Court held that “continuous and systematic general business contacts” were required before a forum could exercise general jurisdiction over a nonresident defendant. Helicopteros, 466 U.S. at 416. The Court explained that a state exercises “general,” as opposed to “specific,” jurisdiction over a defendant when the cause of action does not arise out of, and is not related to, the defendant’s contacts with the state. Helicopteros, 466 U.S. at 414 n. 9. The due process standard of Helicopteros applies in this case because section 48.193 (2) requires no causal connection between a plaintiff’s claim and the defendant’s contacts with the state.

Id., at 391. These contacts are commonly assessed over a period of years prior to the plaintiff’s filing of the plaintiff’s filing of the complaint. Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA):

The record demonstrates that defendant engaged in continuous and systematic business activities with Florida and derived great pecuniary benefit from its transactions here ….Although defendant maintains that some of these business contacts took place after the accident in this case, that fact is not dispositive. “Contacts are commonly assessed over a period of years prior to the filing of plaintiff’s complaint.” […] While any of these activities alone, may not be deemed sufficient, considered collectively, they establish personal jurisdiction.

Id., at 621 (emphasis added). See also Helicopteros, 466 U.S. at 409 – 411 (examining contacts over a seven-year-period, up to the time the lawsuit was filed). See also Nichols v. Pulaski, 652 So. 2d 389, 391 (Fla. 5th DCA 1995):

We recognize that, standing alone, any one of Nichols’ contacts with the state of Florida might not constitute substantial activity within the meaning of section 48.193(2). When viewed in its entirety, however, the evidence presented in this case supports the trial court’s ruling that it possessed personal jurisdiction over Nichols.

Furthermore, under F.R.C.P. (4)(K)(2), a foreign defendant’s U.S. nationwide contacts may be aggregated to subject that defendant to jurisdiction of a district court, provided the claims arise under federal law, and the exercise of jurisdiction is consistent with constitutional principles. See Fraser v. Smith, 594 F.3d 842, 848-849 (11th Cir. 2010); Oldfield v. Pueblo de Bahia Lora, S.A., 2009 U.S. App. Lexis 2657 (11th Cir. 2009). In this case, the underlying maritime tort claims are all governed by federal law. Thus, all of Out Island Charters U.S. contacts are to be considered by the Court to determine if Out Island Charters contacts are to be considered by the Court to determine if its contacts are “continuous and systematic to the nation as a whole.” Id. at 849.

Finally, this “continuous and systematic” contacts requirement [of the general jurisdiction statute] is [also] sufficient to fulfill the constitutional requirements of “minimum contacts.” Autonation, Inc. v. Whitlock, 276 F. Supp. 2d 1258, 1262 (S.D. Fla. 2003). See also Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA) (“if the Defendant’s activities meet the requirements of section 48.193(2), minimum contacts is also satisfied”).

Here, there is an agency relationship between Out Island Charters and Carnival Corporation. In addition, Out Island Charters maintains an agency relationship with Cruise Ship Excursions, Inc. By virtue of these agency relationships, under Meier and Stubbs, the activities of Carnival (which has its corporate headquarters in Miami, Florida) and Cruise Ship Excursions, Inc. (which has its principal place of business in St. Thomas U.S. Virgin Islands) can be imputed to Out Island Charters.

Argument

  1. SINCE 1970, THE OWNERS OF OUT ISLAND CHARTERS N.V., HAVE BEEN IN THE BUSINESS OF PROVIDING SHORE EXCURSION TOURS TO CRUISE SHIP PASSENGERS BY AND THROUGH FLORIDA BASED CRUISE LINES.

Since 1970, John Reeve and Judy Reeve have been in the business of providing shore excursion tours to cruise ship passengers. See “About Us” webpage from www.cruiseshipexcursions.com attached hereto and marked as Exhibit 1. In 1970, John and Judy Reeve started Cruise Ship Excursions, Inc. in St. Thomas U.S. Virgin Island. Id. Today, Cruise Ship Excursions Inc. prides itself as being the largest excursion operator in the United States Virgin Islands. On its “About Us” page of its website (www.cruiseshipexcursions.com), Cruise Ship Excursions, Inc. states in relevant part the following regarding its long history in the shore excursion tour business:

Cruise Ship Excursions, Inc. is the proud operator of the Kon Tiki Glass Bottom Party Raft, Castaway Girl Catamarans, Adventurer Catamarans, Golden Eagle Catamarans (St. Maartin), along with a number of other island and adventure tours.

In 1972 Cruise Ship Excursions, Inc. bought their first commercial catamaran (Golden Eagle I) which currently operates in St. Martin. Currently Cruise Ship Excursions, Inc. now owns 5 catamarans, (3 Golden Eagles located in St. Martin) and recently in 2004 acquired the 2nd of two Castaway Girl Catamaran’s for operation in St. Thomas, Virgin Islands….

Id. In 1987, John and Judy Reeve formed Out Island Charters N.V. for purposes of providing shore excursion tours to cruise ship passengers travelling to St. Maartin. . See Shore Excursion Tour Operator Agreement attached hereto and marked as Exhibit 3.

Since its inception, Out Island has done business with Florida based cruise lines and has repeatedly sought the benefits and protections of U.S. law and/or Florida law. For example, in 2001, Out Island Charters filed a complaint for exoneration from or limitation of liability in United States District Court in the Southern District of Florida. See In re of the Complaint of Out Island Charters N.V., et al, Case No. 01-cv-03228-ASG [D.E. 1] (S.D. Fla. 2001); a copy of the complaint is attached hereto and marked as Exhibit 4. Out Island Charters filed the lawsuit as a result of an incident involving the sinking of one of its shore excursion vessels in the waters of St. Maarten. Id. at 7. Importantly, Royal Caribbean cruise passengers, who were participating on Out Island Charters shore excursion, were aboard the sinking vessel. Id. at ¶7. Thereafter, Out Island Charters became inactive from 2002 to 2012. See [D.E. 19-1, ¶¶5-8, Declaration of Judy Reeve]. However, John and Judy Reeve continued to provide cruise ship passengers with shore excursion tours owned and operated by Cruise Ship Excursions, Inc. See Deposition Transcript of Judy Reeve at 80:23-81:24; a copy of the complete deposition transcript of Judy Reeve is attached hereto and marked as Exhibit 2; see also Exhibit 3.

Over the years, John and Judy Reeve owned and operated other shore excursion tour related companies, such as Tours Ashore, Inc. and Cruise Ship Tours, Inc., both a St. Thomas, USVI Corporations. Id. at 81:25 – 82:03. These shore excursion companies’ maintained common ownership and shareholders. Cruise Ship Tours, Inc. was in the business of providing shore excursion tours to cruise ship passengers. Id. Cruise Ship Tours, Inc. had only two shareholders, John and Judy Reeve. Id. 82:07-12. And, Tours Ashore, Inc. was engaged in the business of yacht charters, which also had John and Judy Reeve as its only two shareholders. Id. at 06:11-07:05; See also See Tours Ashore, Inc., and John and Judy Reeve, as owners of Tours Ashore, Inc. v. Hideaway Yacht Sales, Inc., et al., Case No. 03-80261 (S.D. Fla. 2003) (Hurley, J.) [D.E. 1, Complaint]; a copy of the complaint is attached hereto and marked as Exhibit 5.

In 2003, Cruise Ship Excursions, Inc. entered into a tour operator agreement with Carnival Corporation. See Exhibit 3. This agreement was executed by Judy Reeve on behalf of Cruise Ship Excursions, Inc. Id. Then, in 2004, an addendum was made to the shore excursion tour operator agreement for purposes of adding two new additional tour excursion tours to be operated in St. Maarten by Cruise Ship Excursions, Inc. Id. at pg. 4-5. Thereafter, several addendums were made to the tour operator agreement, which added and removed shore excursion tours, including “cost price changes” made for shore excursion tours being operated in St. Maarten by Cruise Ship Excursions, Inc. Id. Importantly, in 2009, two addendums were made to add the following shore excursion tours to the agrrement: (i) Power Rafting Adventure; (ii) Power Rafting Adventure – Mullet Bay Beach Break and (iii) Power Rafting Adeventure – Snorkel, Shop & Beach. Id. In 2012, Cruise Ship Excursions Inc. was substituted by Out Island Charters as a party to the tour operator agreement with Carnival Corporation. Id. The Power Rafting Adventure shore excursion tour is the alleged shore excursion tour involved in the lawsuit here. [D.E. 1, Complaint]. Despite all this, Judy Reeves maintains that Cruise Ship Excursions, Inc. and Out Island Charters N.V. are entirely separate and independent from one another.

Importantly, these name changes made no real change to the true identity of the owners of the companies providing shore excursions. Nonetheless, Owner Judy Reeve maintains that Cruise Ship Excursions Inc. is entirely separate and independent from Out Island Charters. In her affidavit, Judy Reeve states that:

CSE has been at all times an entity entirely separate and independent from Out Island. These entities have never shared assets, property or employees, nor have they exercised control over one another. These entities have never been anything other than independent of one another. They have never engaged in a joint venture or any other relationship, including but not limited to that of parent/subsidiary, principal/agent, or alter ego.

[D.E. 19-1 at ¶9]. However, contrary to these assertions, Out Island Charters and Cruise Ship Excursions Inc. do have common shareholders and employees. John and Judy Reeve are shareholders of Out Island Charters and Cruise Ship Excursions Inc., and Adam Reeve, son of John and Judy Reeve, is a shareholder of Cruise Ship Excursions Inc. and is also an employee of Out Island Charters. See Exhibit 2 at 10:12-18. Judy Reeve testified that Adam Reeve is in charge of the day-to-day operations of Out Island Charters. Id. at 15:08-24. Thus, both Cruise Ship Excursions Inc. and Out Island Charters N.V. have common shareholders and employees.

Furthermore, contrary to Judy Reeve’s declaration, Cruise Ship Excursions, Inc. has operated, or maintained offices, agents or employees outside of St. Thomas, which is evidenced by the tour operator agreements attached hereto as Exhibit 3; as well as an incomplete version of the tour operator agreement which was attached to Judy Reeve’s Declaration as Exhibit C. [D.E. 19-1, Exhibit C].  Thus, it is reasonable to conclude that Out Island Charters N.V. and Cruise Ship Excursions, Inc. are one in the same.

  1. OUT ISLAND CHARTERS N.V. CONSENTED TO PERSONAL JURISDICTION IN FLORIDA FOR THIS VERY LITIGATION.

Out Island Charters should be denied on its face because Out Island consented to personal jurisdiction for this very litigation by virtue of its agreement with Carnival. Under paragraph 14, subsection c of the tour operating agreement with Carnival Corporation, Out Island Charters agreed to the personal jurisdiction of this Honorable Court. See Exhibit 3. Under paragraph 14, subsection c) of the tour operator agreement with Carnival, Out Island Charters agreed to the following terms and conditions:

In the event of litigation, the prevailing party shall be entitled to recover all costs incurred in connection with the litigation including, without limitation, reasonable attorney’s fees. OPERATOR consents to the personal jurisdiction over it and to the venue of the courts serving the Southern District of Florida in the event of any lawsuit to which Carnival is a party and which is related to, in connection with, arising from or involving the Shore Excursion or the terms of this Agreement.

Id. The language in the agreement is clear. Out Island Charters expressly agreed to consent to this Court’s jurisdiction in the event any lawsuit to which Carnival is a party (such as here) and which is related, in connection with, arising from or involving the Shore Excursion (such as here). Nothing contained in the contract says that only Carnival can enforce this clause. In fact, it is Out Island Charters that is actually trying to breach its contract by avoiding personal jurisdiction.[2] At worst, Plaintiffs are intended third party beneficiaries, as pled in the Complaint.

This point is strengthened by the fact that Carnival’s cruise passenger ticket contract (D.E. 13-2, Carnival Passenger Cruise Ticket Contract] also requires that all lawsuits be filed in this District (clause 12(c)). And the cruise passenger ticket also states that this forum selection clause applies for the benefit of Shore Excursions (clause 1(f)). Id. As such, it should be clear that all applicable contracts amongst the passengers, the cruise line and shore excursions expressly require all lawsuits be brought here. As such, even the most cursory review of the record shows that Out Island reasonably anticipated being hauled into court in Florida.

  1. Pursuant to Florida Statute 685.101 and Jetbroadband WV, LLC v. Mastec N. AM., Inc., personal jurisdiction is proper over Out Island Charters N.V.

Further to this point, Florida Statute § 685.101(1) states as follows:

(1) The parties to any contract, agreement, or undertaking, contingent or otherwise, in consideration of or relating to any obligation arising out of a transaction involving in the aggregate not less than $250,000, the equivalent thereof in any foreign currency, or services or tangible or intangible property, or both, of equivalent value, including a transaction otherwise covered by s. 671.105(1), may, to the extent permitted under the United States Constitution, agree that the law of this state will govern such contract, agreement, or undertaking, the effect thereof and their rights and duties thereunder, in whole or in part, whether or not such contract, agreement, or undertaking bears any relation to this state.

This is precisely what occurred herein as the amounts in the aggregate herein most likely exceed $250,000. The typical split between Carnival and Out Island Charters is 50/50. See Exhibit 3, Tour Operator Agreement produced by Carnival during limited jurisdictional discovery and [D.E. 19-1, Exhibit C, Tour Operator Agreement attached to Judy Reeve’s Declaration]. Consequently, it is reasonable to conclude that the aggregate amount of the transaction(s) is far in excess of the $250,000 minimum. Moreover, 95% of the revenues generated by Out Island Charters are derived from its business dealings with cruise lines. As such, the “aggregate” amount likely far exceeds the $250,000 statutory figure.

Further to this point, the law is clear that a defendant’s contacts with a forum are assessed over a period of years prior to the filing of the lawsuit. See e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984)(examining contacts over a seven-year-period, up to the time the lawsuit was filed); Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA)(“Contacts are commonly assessed over a period of years prior to the filing of plaintiff’s complaint.”). As such, where the law is clear that a defendant’s contacts are assessed over a period of years, it would be inconsistent with this law to only look at one year’s net invoices to determine if this meets the aggregate amount of $250,000 as required by statute.

  • SINCE 1987, OUT ISLAND CHARTERS HAS BEEN ENGAGED IN SYSTEMATIC AND CONTINUOUS ACTIVITIES WITH FLORIDA.

Out Island Charters has maintained a business relationship with Carnival Corporation for over ten years. Out Island Charters has entered into tour operator agreements with Carnival Corporation. In 2003, Cruise Ship Excursions Inc. entered into a tour operator agreement with Carnival Corporation. Then, Out Island Charters substituted Cruise Ship Excursions Inc. as a party to the tour operator agreement with Carnival Corporation. Through these business transactions, Out Island Charters purposefully conducted business with Carnival Corporation, which maintains its principal place of business in Miami, Florida. Furthermore, Out Island Charters has contracted with other Florida based cruise lines, such as Royal Caribbean Cruises Ltd, Celebrity Cruises Inc., Disney Cruise Lines, and NCL. All of these cruise lines maintain their headquarters in Florida.

In addition, Out Island Charters obtained liability insurance for its land-based excursion tours from Royal Marine Insurance Group, which is located in Miami, Florida. Out Island Charters maintains this liability insurance by making premium payments to Royal Marine Insurance Group in Miami, Florida. See Exhibit 2 at 59:02 – 60:07, Deposition of Judy Reeve. Again, this shows that Out Island Charters purposefully solicits and engages in business relationships with corporate entities located in Miami, Florida.[3]

Out Island Charters sells and advertises its shore excursion tours in Florida. Carnival Corporation acts on behalf of Out Island Charters with respect to booking shore excursions with Carnival cruise line passengers. See Exhibit 2 at 38:21 – 39:02, Deposition of Judy Reeve. Out Island Charters, through Carnival, advertises its shore excursions tours to Carnival cruise ship passengers. See Exhibit 2 at 34:10-14, Deposition of Judy Reeve. Carnival, through its website (www.carnival.com), offers, arranges for, recommends, and markets to Carnival passengers, including prospective passengers, shore excursion tours owned and operated by Out Island Charters. See Exhibit 3.

Furthermore, it is undisputed that other Florida-based cruise lines, which do business with Out Island Charters, also offer, arranges for, recommends, and markets to passengers, including prospective passengers, shore excursion tours owned and operated by Out Island Charters.

Therefore, Out Island Charters, in doing business with these Florida-based cruise lines, including Carnival Corporation, does offer, arrange for, recommend, and market its shore excursion tours in Miami, Florida.

Out Island Charters has previously availed itself to the benefits and protections of this forum, including the laws of the United States. On or about July 23, 2001, Out Island Charters filed a Complaint for Exoneration from or Limitation of Liability in United States District Court for the Southern District of Florida. See Exhibit 4. Out Island Charters’ Complaint concerned an incident which occurred during one of its shore excursion tours and involving cruise line passengers vacation aboard Royal Caribbean Cruises Ltd.’s cruise ship, the M/V Monarch of the Seas. Specifically, on January 31, 2001, the M/V Golden Eagle II, a shore excursion owned and operated by Out Island Charters, began to take on water during one of its excursion tours with Royal Caribbean cruise passengers aboard the vessel. Id. at paragraph 7. The M/V Golden Eagle II subsequently sank. Id. As a result, Out Island Charters filed the Complaint for Exoneration from or Limitation of Liability in United States District Court for the Southern District of Florida. Id.

Furthermore, John and Judy Reeve, individually and through their other shore excursion tour-related companies, have repeatedly invoked the benefits of the laws of the United States. See Exhibit 5. (the case concerned a breach of contract claim with regard to a vessel named the M/V Great Eagle, which John Reeves purchased the said vessel for the sum of $1,125,000 or One Million One Hundred and Twenty-five Thousand Dollars from a Florida based corporation located in Ft. Lauderdale, Florida.).

Therefore, by the virtue of the filing of these lawsuits, the owners of Out Island Charters, John and Judy Reeve, have invoked time and time again the benefits and protections of this forum and of the laws of the United States, such as U.S. General Maritime Law. As such, Out Island should also be subject to the burden of U.S. law in this matter.

  1. PLAINTIFFS HAVE PROPERLY SERVED DEFENDANT OUT ISLAND CHARTERS NV USING TWO METHODS. FIRST, PLAINTIFFS SERVED DEFENDANT THROUGH THE FLORIDA SECRETARY OF STATE, PURSUANT TO FEDERAL RULE 4(H). ADDITIONALLY, PLAINTIFFS SENT A COPY OF THE COMPLAINT AND SUMMONS TO THE DEFENDANT VIA CERTIFIED MAIL, PURSUANT TO RULE 4(F). THEREFORE, PLAINTIFFS’ SERVICE SATISFIES DUE PROCESS REQUIREMENTS: AT ALL TIMES MATERIAL, DEFENDANT HAS HAD NOTICE OF THIS ACTION, AND THROUGH ITS ATTORNEYS, HAS HAD AN OPPORTUNITY TO DEFEND THE CLAIMS BROUGHT AGAINST IT.

The starting point for an analysis of amenability of service of process in federal court is Federal Rule of Civil Procedure 4. Rule 4 allows for two types of service: personal and substituted. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and has more often been held unnecessary as to nonresidents. See Silvious v. Pharaon, 54 F. 3d 697 (11th Cir. 1995) (citing Mulane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).

  1. First Method of Service: By mailing a copy of the Complaint and summons to the Defendant via certified mail, service was proper pursuant to Federal Rule of Civil Procedure 4(f).

Federal Rule of Civil Procedure 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(f)(2)(C)(ii).

On July 31, 2014, Plaintiffs sent Defendant, Out Island Charters NV, via FedEx Express mail, a copy of the Complaint and Summons to its address in Phillipsburg, St. Maarten. See [D.E. 8]. This Honorable Court has held that this form of service is proper under the Federal Rules of Civil Procedure. See Balachader v. NCL (Bahamas), Ltd., 11-21064 [D.E. 25] (S.D. Fla. 2011) (King, J.):

The docket sheet reflects that a summon for service abroad was returned executed on May 11, 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 [in]correct [sic]. 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[f](2)(C)(2).

Id., at pg. 3.

Here, like in Balachander: a) the docket sheet reflects that a summons for service abroad was returned executed [D.E. 12]; b) the affidavit of service states that the summons and complaint were mailed directly to Defendant Out Island Charters at its mailing address in Phillipsburg, St. Maarten on July 31, 2014 and on August 13, 2014 [D.E. 8 and 12, respectively]; c) Plaintiff filed a copy of the stamped and addressed registered mail sent to Out Island Charters NV Id.; d) the filing reflects that a signature is required by the Defendant Id. and e) Out Island Charters NV does not dispute that the materials were mailed or that the mailing address is incorrect.

All in all, it’s clear that the service on Out Island Charters is virtually identical to the service over the foreign defendant in Balanchander. Therefore, as Judge King held in Balanchander, sending the Complaint and summons directly to Defendant to its address in Dominica via certified mail, is valid service pursuant to Federal Rule of Civil Procedure 4(f)(2)(C)(ii).

  1. Second Method of Service: Alternatively, Plaintiffs substituted service through the Florida Secretary of State satisfied the elements of Federal Rule 4(h)(1)(B).

Federal Rule of Civil Procedure 4(h) “Serving a Corporation, Partnership, or Association,” provides, in part:

Unless Federal Law provides otherwise, or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other incorporated association that is subject to suit under a common name, must be served:

  1. In a judicial district of the United States:
  • in the manner prescribed by Rule 4(e)(1) for serving an individual; or
  • By serving a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by law to receive service of process and –if the agent is one authorized by statute and the statute so requires– by also mailing a copy to each defendant.

Id. (emphasis added).

Here, it undisputed that Defendant Out Island Charters is a “foreign corporation, or partnership or other unincorporated association.” As shown above, Rule 4(h)(1)(B), permits service on a foreign corporation by service to an agent authorized by law to receive service of process.

Florida law, particularly section 48.181, permits the Florida Secretary of State to accept service of process on behalf of nonresidents who engage in or carry a business or business venture in the state. See Fla. Stat. section 48.181. See also Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001, 1003 (Fla. 5th DCA 1994). See Cantley v. Ducharme, 2010 WL 2382912 (S.D. Fla. 2010) (Under the Florida substitute service statute, §48.181, any resident of a foreign country 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). [4]

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)). See also Poston v. American President Lines, Ltd., 452 F. Supp. 568 (S.D. Fla. 1978):

The intent of the Florida legislature in enacting Florida Statute 48.181 (was) that any individual or corporation who has exercised the privilege of practicing a profession or otherwise dealing in goods, services or property, whether in a professional or nonprofessional capacity within the State in anticipation of economic gain, be regarded as operating a business or business venture for purposes of service of process under Florida statute 48.181 … Id.

Herein, as alleged in the Complaint [D.E. 1, ¶ 7], a) “Defendants operated, conducted, engaged in and or carried on a business venture in the United States, and/or this state or county and/or had an office or agency in the United States and/or this state or county and b) were engaged in substantial business activity within the United States and this state.”

These allegations must be accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957) (“… when ruling on a motion to dismiss, a judge must accept as true all of the factual allegations in the Complaint”).

Moreover, these allegations are sufficient to establish proper substituted service through the secretary of state for purposes of 48.181. See Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005); Venetian Salami Co. v. Parthenais, 554 So. 2d 573, 574 (Fla. 1st DCA 2003) (To determine whether long-arm jurisdiction is appropriate for substitute 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).

Therefore, Plaintiffs service on the Florida Secretary of State, as Out Island Charters agent to accept service of process by operation of law, was proper. [D.E. 12], Florida Secretary of State’s acceptance of service for Defendant Out Island Charters on August 5, 2014. [D.E. 12]

  1. Plaintiffs Service Complies with Due Process Requirements.

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.

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

Herein, Plaintiffs service complies with due process requirements. First, Plaintiff’s service was reasonably calculated to provide notice: Plaintiffs served Defendant Out Island Charters multiple times: a) by sending a copy of the Complaint and process directly to Out Island Charters to its mailing address in Phillipsburg, St. Maarten via certified mail pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii), and b) through the Florida Secretary of State, pursuant to Fed. R. Civ. P. 4(h)(1)(B).

Second, Plaintiffs service was reasonably calculated to provide Defendant an opportunity to respond. The fact that Out Island Charters timely filed a motion to dismiss for lack of personal jurisdiction and to quash service of process is evidence that it has notice of the action pending against it, and Out Island Charters has therefore been given an opportunity to be heard and present objections. [D.E. 19].

Therefore, Defendant’s, Out Island Charters, Motion to Quash Service [D.E. 19] should be denied.

WHEREFORE, Plaintiffs respectfully requests that this Honorable Court deny Defendant Out Island Charters N.V. Motion to dismiss, and any other relief this Court deems just and proper.

Respectfully submitted,

LIPCON, MARGULIES,
ALSINA & WINKLEMAN P.A
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373 – 3016
Facsimile: (305) 373 – 6204

By: /s/ David A. Villarreal     _
MICHAEL A. WINKLEMAN          
Florida Bar No. 36719
DAVID A. VILLARREAL
Florida Bar No. 100069

Certificate of Service

WE HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court via CM/ECF on this 4th day of May, 2015. We also certify that the foregoing was served on all counsel or parties of record on the attached Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Filing.

By: s/David A. Villarreal
 David A. Villarreal

[1] Florida Statute section 48.193(1)(a) provides, in part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from doing any of the following acts: (a) Operating, conducting, engaging in or carrying on a business or business venture in this state or having an office or agency in this state.

[2] It is noteworthy that Carnival stands by idly while Out Island Charters attempts to breach its contractual obligations. This is likely because the contract also contains an indemnification provision (paragraph 11) whereby Out Island Charters agrees to indemnify Carnival for the incident that is the subject matter of the action. As such, it is legal fiction that there are two separate defendants in this matter where one is indemnifying the other. In such a circumstance, it would be inequitable to allow Out Island Charters to escape jurisdiction (where it consented to it), merely because Carnival sits by and does nothing.

[3] Importantly, Judy Reeve’s deposition testimony concerning insurance procured by Out Island Charters is contrary to her assertion under paragraph 31 of her affidavit wherein she states that “Out Island’s insurance has at all times material been through foreign insurance providers.” [D.E. 19-1 at ¶31].

[4] Fla. Stat. section 48.181 states, in relevant part:

(1) The acceptance by any person or persons, individually or associated together …, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his or her whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry out a business or business venture in the state … constitutes an appointment by the persons and foreign corporations of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them … arising out of any transaction or operation connected with or incidental or business venture may be served. Id. (Emphasis Added).