August 05, 2010
Nancy Thomas v. Carnival Corporation, Doctor Elwi Sayed-Tanani, Nurse Mayam Wardee, Nurse Ninette Williams, Nurse Cheryl MacFarlane, Doctor Doe and Nurse Doe 1 through 3
Plaintiff’s Response in Opposition to Defendant’s Motion to Quash
Plaintiff’s served the individually named medical Defendants in this case, who are employees of Carnival, by serving the corporate agent of Carnival. Carnival attempted to have this service invalidated by the Court by arguing that it was improper. In this response the Plaintiff explains to the Court why the method of service chosen was the most appropriate method and should be upheld.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 10-22018-CIV-MARTINEZ/BROWN
NANCY THOMAS,
Plaintiff,
v.
CARNIVAL CORPORATION, DOCTOR ELWI
SAYED-TANANI, NURSE MARYAM WADEE,
NURSE NINETTE WILLIAMS, NURSE CHERYL
MACFARLANE, DOCTOR DOE and NURSE
DOE 1 THROUGH 3,
Defendants.
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO QUASH
COMES NOW, Plaintiff Nancy Thomas and files her response in opposition to Defendants’ Doctor Elwi Sayed-Tanani, Nurse Maryam Wadee, Nurse Ninette Williams, and Nurse Cheryl Macfarlane’s Motion to Quash Service of Process (D.E. 14), and for good cause relies on the following memorandum of law.
MEMORANDUM OF LAW
I. DEFENDANTS’ MOTION TO QUASH SERVICE SHOULD BE DENIED BECAUSE UNDER THE UNIQUE CIRCUMSTANCES, SERVICE ON CARNIVAL WAS THE MOST REASONABLE WAY TO GIVE THEM NOTICE. THE UNIQUE CIRCUMSTANCES HEREIN ARE THAT THE MEDICAL DEFENDANTS LIVE AND WORK ABOARD VESSELS FOR MONTHS AT A TIME, TRAVELING AROUND THE WORLD, AND THEIR EMPLOYER CARNIVAL IS IN THE BEST POSITION TO KNOW OF THEIR WHEREABOUTS.FURTHERMORE, UPON INFORMATION AND BELIEF, CARNIVAL HAS CONTRACTUALLY AGREED TO INDEMNIFY THE MEDICAL DEFENDANTS FOR THE CLAIMS ALLEGED HEREIN. ALTERNATIVELY, SHOULD THIS HONORABLE COURT REQUIRE, PLAINTIFF REQUESTS LEAVE TO CONDUCT LIMITED DISCOVERY INTO ISSUES OF SERVICE OF PROCESS AND PERSONAL JURISDICTION.
A. OVERVIEW
This action arises out of the grievous personal injuries sustained to Plaintiff Nancy Thomas while a passenger aboard a Carnival Vessel, wherein the Carnival medical staff failed to properly diagnose and/or treat Plaintiff’s burst appendix. Plaintiff filed suit against Carnival and against Defendants Doctor Elwi Sayed-Tanani, Nurse Maryam Wadee, Nurse Ninette Williams, and Nurse Cheryl Macfarlane (hereinafter referred to as the “Medical Defendants”). D.E. 1. The Medical Defendants were sued individually, as well as in their official capacity as employees of Carnival. As such, Plaintiff effectuated service of process on the Medical Defendants by serving them through their employer, Carnival.
On July 12, 2010, the Medical Defendants filed their Motion to Quash service of process. D.E. 14. As the following memorandum makes clear, the Medical Defendants Motion to Quash Service of Process should be denied because under the unique circumstances, service of process on Carnival was the most reasonable method to provide notice to the medical defendants. And as represented by the instant Motion to Quash, the service was successful. Alternatively, should this Honorable Court require, Plaintiff seeks leave to conduct limited jurisdictional discovery in order to resolve the pending and/or upcoming issues related to service of process and personal jurisdiction.
B. SERVICE ON THE MEDICAL DEFENDANTS BY SERVING CARNIVAL WAS THE METHOD OF SERVICE MOST REASONABLY CALCULATED TO PROVIDE NOTICE AND AN OPPORTUNITY TO RESPOND UNDER THE UNIQUE CIRCUMSTANCES. AND SUCH SERVICE WAS SUCCESSFUL AS EVIDENCED BY THE MEDICAL DEFENDANTS’ MOTION TO QUASH SERVICE OF PROCESS.
Long-standing jurisprudence including the 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 constitutional validity of any chosen method may be defended on the grounds that it is in itself reasonably calculated to inform those affected. Id. In proper circumstances, this broad 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).Florida courts also recognize this principle and adhere to it. “The purpose of service of process is to give a defendant proper notice that it is answerable to a plaintiff’s claim, to advise the defendant of the nature of that claim, and to afford the defendant an opportunity to defend against it.” American Hosp. of Miami, Inc. v. Nateman, 498 So.2d 444, 445 (Fla. 3d DCA 1986). Where it is undisputed that the defendant received the summons, service is “quite obviously sufficient.” Id.
In short, this issue before this Honorable Court is whether service on the medical defendants by serving Carnival Corporation was reasonably calculated to provide notice and an opportunity to respond.A cursory review of the facts and unique circumstances herein shows exactly that.
This lawsuit is based on the medical malpractice of Carnival’s Medical staff which worked exclusively aboard a Carnival cruise ship. The Medical defendants failed to properly diagnose Plaintiff’s appendicitis, ultimately pushing Nancy Thomas to the brink of death. Plaintiff filed suit against Carnival and the Medical Defendants. At the time of filing the lawsuit (and presently) the only information available to Plaintiff was the name of the applicable medical defendants, nothing more. No addresses, social security numbers, or even states or country of residence. Plaintiff conducted a diligent inquiry to try to ascertain additional information regarding the medical defendants, including searching numerous internet databases, but with nothing more than a name, such searches were fruitless. Under these circumstances, there was only one reasonable manner to effectuate service of process: serve the medical defendants by serving their employer Carnival.
Service on Carnival is reasonable for several reasons. First, medical personnel aboard cruise ships live and work at sea for periods of months at a time, typically signing employment contracts that range from three months to one year. Such contracts can literally take such persons around the world at the various ports of call. Attempting to personally serve such an individual is virtually impossible. And if the point of service of process is to provide notice and an opportunity to respond, then who better to serve than their employer Carnival who knows exactly where they are at any given time.
Second, Plaintiff’s counsel (through handling many of these lawsuits) is aware that Carnival contractually agrees to indemnify such medical personnel for any lawsuits arising out of their work.[1] In this indemnity agreement Carnival agrees to retain and pay for the Medical Defendants’ legal representation for claims arising out of their work as a Carnival doctor or nurse. Consequently, service on Carnival is in fact service on the pa
rty that has agreed to indemnify the medical defendants for the very lawsuit which being served. Herein, this is precisely what occurred. Shortly after Plaintiff served the Medical Defendants by serving Carnival, Carnival retained Michael Drahos, Esq. of Fowler, White Burnett P.A. to represent them in this action; who thereafter filed the instant Motion to Quash. D.E. 14. Thereafter, counsel for Plaintiff contacted counsel for the Medical defendants and requested the last known addresses of the Medical defendants. [2] But remarkably, counsel for the Medical Defendants did not know the addresses of the Medical Defendants. Thus, how can plaintiff be expected to personally serve persons when their own attorney does not even know their addresses? Nonetheless, the fact that counsel appeared on behalf of the Medical Defendants to contest service of process shows the Medical Defendants received notice of Plaintiff’s claim against them and are exercising their right to defend against it. Accordingly, service of process herein was constitutionally sufficient as it was the only method of service possible, under the unique circumstances, to give the medical defendants notice and an opportunity to respond.See American Hosp. of Miami, Inc. v. Nateman, 498 So.2d 444 (Fla. 3d DCA 1986). Therefore, Defendants’ Motion to Quash service should be denied.
C. ALTERNATIVELY, PLAINTIFF REQUESTS LEAVE TO CONDUCT LIMITED JURISDICTIONAL DISCOVERY. As set forth above, there is ample reason for this Honorable Court to deny Defendant’s Motion to Quash Service. Alternatively, Plaintiff requests leave to conduct limited jurisdictional discovery into issues regarding service of process and personal jurisdiction. Defendants’ Motion to Quash Service of process raises the issue of personal jurisdiction, but controlling precedent establishes that a ruling on the issue of personal jurisdiction would be premature without allowing plaintiff an opportunity to conduct discovery. As the Eleventh Circuit makes clear, “a plaintiff should be given the opportunity to discover facts that would support his allegations of jurisdiction.” Majd-Pour v. Georgiana Community Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984). Accordingly, Plaintiff requests leave to conduct limited jurisdictional discovery; for the Court to provide a time period for conducting such discovery (90 days); and for the court to allow additional briefing on service of process and personal jurisdiction at the conclusion of the limited discovery period. [3]
D. ADDITIONALLY, PLAINTIFF REQUESTS THIS HONORABLE COURT ORDER COUNSEL FOR DEFENDANTS TO PROVIDE CURRENT ADDRESSES FOR THE MEDICAL DEFENDANTS.
Additionally and/or alternatively, Plaintiff respectfully requests the entry of an order requiring the disclosure of the Defendants’ current and permanent addresses. Rule 2.515(a) of the Florida Rules of Judicial Administration states in pertinent part: “The attorney may be required by the court to give the address of, and to vouch for the attorney’s authority to represent, the party.” Florida courts have interpreted this rule to give a court authority to require counsel to disclose the address of its client during the pendency of litigation for the proper administration of justice. Mercado v. Parent, 421 So. 2d 740 (Fla. 4th DCA 1982).
In the nearly identical case of Burden v. Church of Scientology of California, 526 F. Supp. 44 (M.D. Fla. 1981), Plaintiff was unable to locate the Defendants to serve the complaint and sought a court order compelling the Defendants’ former attorney in the matter to disclose the Defendants whereabouts. Citing to Rule 2.515, the Court ordered the attorney to disclose the whereabouts of his former clients and stated that the attorney-client privilege could not be used to protect a client’s identity, including the client’s address. Id. at 45-46.
Herein, despite diligent efforts, Plaintiff is unable to locate the Medical Defendants. And if this Honorable Court finds that service of process upon the Medical Defendants by serving Carnival was insufficient, then the proper administration of justice requires the disclosure of the physical address of the Medical Defendants so that Plaintiff may serve process on them directly. Accordingly, Plaintiff asks this Honorable Court to order Defendants’ counsel to disclose the last known addresses of his clients.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an order denying Defendants Dr. Elwi Sayed-Tanani, Nurse Maryam Wadee, Nurse Ninette Williams, and Nurse Cheryl Macfarlane’s Motion to Quash Service. Alternatively, to the extent this Honorable Court finds necessary, Plaintiff requests leave to conduct limited jurisdictional discovery; for the Court to provide a time period for conducting such discovery (90 days); and for the court to allow additional briefing on service of process and personal jurisdiction at the conclusion of the limited discovery period. Additionally and/or alternatively, Plaintiff respectfully requests the entry of an order requiring the disclosure of the Defendants’ physical addresses. Once Plaintiff obtains this information, should the Court require, Plaintiff will serve such process on them directly.
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/ Michael A. Winkleman
MICHAEL A .WINKLEMAN
FLORIDA BAR NO 36719
[1] See attach form contract between Carnival and its shipboard physician, attached as Exhibit 1. It is reasonable to infer that the same or similar contract exists herein.
[2] Additionally, Plaintiff filed a Notice of Lawsuit and Request to Waive Service of a Summons with the Court and forwarded a copy to the Medical Defendants care of Defendants’ counsel.
[3] In accord with Local Rule 7.1, counsel for Plaintiff contacted counsel for Defendant to see if Defendant objected to such limited discovery. Counsel for Defendant has not yet provided his clients’ position.
