April 23, 2012

Ortega v. Carnival Corp. et al

Response in Opposition to Motion to Dismiss

When injured aboard a cruise ship, passengers often seek the help of the medical staff aboard the vessel. Unfortunately, passengers often receive substandard care from the cruise ship medical staff. This substandard care can worsen your condition or create an entirely new problem. Although long-standing precedent puts a hurdle in the way of passengers injured by medical negligence aboard ship, our attorneys fight to protect the rights of passengers who receive substandard care. In this response to a motion to dismiss, our experienced maritime attorneys argue against the doctors and nurses who provided poor medical care to our client, to ensure that they will be held responsible.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-21806-Civ-Martinez/McAliley
JOHN ORTEGA
Plaintiff,

vs.

DJORDJE DEBELJACKI (SHIPBOARD DOCTOR),
SHADHIDARA PALABOYIDODDI KRISHN (SHIPBOARD DOCTOR),
ANITA VAN DER TAS (NURSE)
ANITHA SHASHIDHAR (NURSE)
SHARON FISHER (NURSE)
Collectively known as the “MEDICAL DEFENDANTS”
and JOHN DOE (Passenger)
Defendants,
_______________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT SHADHIDARA PALABOYIDODDI KRISHN’S MOTION TO DISMISS AMENDED COMPLAINT

COMES NOW, Plaintiff, JOHN ORTEGA, by and through undersigned counsel, and hereby files his response in opposition to Defendant, SHADHIDARA PALABOYIDODDI KRISHN (Defendant Krishn/Medical Defendant), Motion to Dismiss For Failure to State a Claim [D.E. 49, p. 5- 12]. In support thereof, Plaintiff alleges as follows:

I. BACKGROUND.

This matter arises out of serious injuries suffered by Plaintiff, John Ortega, while traveling aboard a Carnival cruise as a paying passenger. On or about June 16, 2010, shortly after Plaintiff boarded the ship and while the vessel was still in port; Plaintiff was embarking aboard the ship in conditions where Carnival failed to control the embarking crowd of passengers. Consequently, Plaintiff was pushed by co-Defendant John Doe,[1] another individual aboard the vessel, causing the Plaintiff to fall and become injured.

After the incident, and while the ship was still in port, Plaintiff made several requests directly to Carnival to be let off the ship to get medical treatment on shore. Carnival agents, however, refused. As a result, Plaintiff was forced to receive medical treatment from the shipboard medical facility personnel; the ship’s physicians (Djorde Debeljacki, Shadhihara Palaboyidoddi Krishn) and the ship’s nurses (Anita Van Der Tas, Anitha Shashidhar, and Sharon Fisher). At all relevant times, while aboard the ship, Plaintiff received substandard medical treatment which deviated from acceptable care standards.

On May 18, 2011, Plaintiff filed his initial Complaint against Defendants Carnival and John Doe. At the time the original complaint was filed, because Plaintiff did not know the identity of any of the Medical Defendants, Plaintiff named fictitious Defendant “Dr. Doe” in the Complaint. At that time, Plaintiff requested Defendant Carnival to provide him with the actual names of all the medical personnel (nurses and doctors) that treated the Plaintiff on board the subject cruise. However, Carnival failed to provide this information regarding the identity of its ship’s doctors and nurses until December, 2011.

Finally, on December 22, 2011, counsel for Defendant Carnival disclosed to Plaintiff “the names of the ship medical personnel identified as having treated the Plaintiff, John Ortega, during the subject cruise.” See Exhibit “1:” Carnival’s E-mail identifying the names of the medical defendants.[2]

On January 19, 2012, Plaintiff filed a Motion for Leave to Amend the Complaint, primarily to add the actual names of the medical defendants into the lawsuit. [D.E. 24]. On January 23, 2012, the Court granted the motion for leave [D.E. 25], and on that same day, Plaintiff filed his Amended Complaint [D.E. 26].

On April 4, 2012, Defendant Shadhihara Palaboyidoddi Krishn (hereinafter “Defendant Krishn/Medical Defendant) filed a Motion to Dismiss for Failure to State a Claim, alleging that the claims against her are barred by the statute of limitations. [D.E. 49, p. 5- 12]. Simultaneously, within the same motion, the ship doctor also included a Motion to Dismiss for Lack of Personal Jurisdiction. [D.E. 49, p. 1 – 5]. For clarity’s sake and for the benefit of the Court, Plaintiff responded the ship doctor’s Motion to Dismiss for Lack of Jurisdiction separately. See D.E. 55. Here, Plaintiff responds to Defendant Dr. Krishn’s Motion to Dismiss for Failure to State a Claim.

As set forth below, the Medical Defendant’s Motion to Dismiss should be denied in its entirety. In short, the Medical Defendant argues that the Plaintiff’s claims against him are time barred. In doing so, the Medical Defendant relies entirely on a provision in the passenger ticket contract, which requires that all claims against Carnival be filed no later than 1 year after the incident.

As shown below, Defendant’s statute of limitations defense is inapplicable.
First, to the extent that the 1-year limitations provision in Carnival’s passenger ticket contract applies to claims against the Medical Defendants:

a) The subject incident in this matter took place on June 16, 2010. Plaintiff filed his original Complaint on May 18, 2011. Thus, assuming that the Medical Defendants can rely on the 1-year provision in the passenger ticket contract (a contract between Carnival and the Plaintiff only); Plaintiff filed her claims well within the 1-year period.

b) The Medical Defendants cannot argue that the claims against them were first raised in the Amended Complaint (dated January 23, 2012) – and therefore outside of the 1-year provision. Pursuant to Federal Rule of Civil Procedure 15(c), all of the claims against the Medical Defendants raised in the Amended Complaint relate back to the claims in the original Complaint (filed on May 18, 2011). Indeed, the substantive allegations in Count III of the original complaint (alleging Negligence against fictitious medical defendant Dr. Doe), are identical to the allegations in Count III of the Amended Complaint (alleging negligence against the Medical Defendants).

c) The only difference between the original Complaint and the Amended Complaint is that Plaintiff substituted the fictitious Defendant Dr. Doe (listed in the original Complaint), with the actual names of the Medical Defendants (in the Amended Complaint). Under the “fictitious defendant rule,” amendments substituting a named defendant previously sued under a fictitious name, relate back to the filing of the original complaint when recovery is sought in both pleadings on the same general set of facts. See Lindley v. General Electric Company, etc., 780 F. 2d 797 (9th Cir. 1986); Palestini v. General Dynamics Corporation, 193 F.R.D. 654 (S.D. Cal. 2000); Saxton v. ACF Industries, Inc., 254 F. 3d 959 (11^th Cir. 2001).

Second (in the alternative), the 1-year limitations provision in Carnival’s passenger ticket contract does not apply to the Medical Defendants.

Plaintiff contends that he did file his claims within a year of the subject incident and that any subsequent amendments to the complaint relate back to the filing of the original complaint. However, even if for the sake of argument this had not been the case, the Plaintiff was not required to file his claims against the Medical Defendants within a year. Rather, this requirement was limited to claims against Carnival, for the following reasons:

a) The passenger ticket contract was specifically between Carnival and Plaintiff (as passenger). As a result, the Medical Defendants cannot rely on the 1-year limitations provision of a contract to which they were not parties. Moreover, whether the Medical Defendants were “intended beneficiaries” of the passenger ticket 1-year limitations provision (as the Medical Defendants seem to be claiming), involves questions of fact concerning the intent of the parties to the contract. To ascertain the intent of the parties would require the Court to interpret Carnival’s passenger ticket contract. Because the ticket contract is a document outside of the four corners of the Complaint, such determinations of fact are premature at the Motion to Dismiss stage. See Federal Deposit Insurance Corporation v. Grant, et al., 8 F. Supp. 2d 1275 (N.D. Ok. 1998) (“Whether an action is barred by the applicable statute of limitations is a question of fact to be determined by considering the evidence in each case.”);

b) Because the Medical Defendants cannot rely on Carnival’s 1-year limitation provision and this case involves a claim in admiralty; the 3-year admiralty statute of limitations for civil claims applies. See 46 U.S.C. § 30106. It is undisputed that the Plaintiff’s claims against the medical defendants were filed within the 3-year admiralty statute of limitations period.

Third, the Medical Defendants should be estopped from relying on Carnival’s 1-year limitations period.

At the time that Plaintiff filed her initial Complaint (on May 18, 2011) well within the 1-year period, Plaintiff did not know the names of the Medical Defendants that treated her. Immediately thereafter, Plaintiff repeatedly asked Carnival for the names of the Medical Defendants, so that he could add these names into the Complaint. Whether purposefully or not, Carnival did not provide this information until December, 2011 (6 months after the 1-year limitations period had expired).

The equitable principle of estoppel prevents a defendant – whose representations or other conduct have caused a plaintiff to delay filing suit until after the running of the statutory period – from asserting that bar to the action.Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). This is precisely what the Defendants have done here. At all times material, Carnival had exclusive custody and/or control over the names of the medical defendants that treated the Plaintiff. Rather than providing these names upon request, Carnival waited until after the expiration of the 1-year period to provide them. Such delay unfairly benefits the Medical Defendants and Carnival (who is contractually required to defend and indemnify the Medical Defendants) at the expense of the Plaintiff.

II.STANDARD OF REVIEW.

When ruling on a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 (2007). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court reaffirmed the “notice pleading” principle codified in Federal Rule of Civil Procedure 8, asserting that a complaint must offer more than a formulaic recitation of the elements of a cause of action. Three weeks after issuing Twombly, the Supreme Court put its decision in context with its ruling in Erickson v. Pardus, 551 U.S. 89 (2007). Quoting Twombly and Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court in Erickson held:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that a pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations in the complaint. Bell Atlantic Corp. Supra., at 555-556.

Id., at 93-94. (emphasis added) (Other internal citations omitted).

All in all, as this Honorable Court recently explained in the matter of Rocha v. Carnival Corporation, Case No: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26] even after Twombly, “it remains black-letter law today that in the ordinary case a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” “Twombly neither eliminated nor marginalized the liberal pleading rules.” Id., at 3-4, citing Caytrans BBC, LLC v. Equipment Rental & Contractors Corp., 2009 WL857554, at *2 (S.D. Ala. Mar. 25, 2009) and Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 958 (11th Cir. 2009).

III. DEFENDANT’S STATUTE OF LIMITATIONS ARGUMENT FAILS. ALL OF THE FACTS ALLEGED IN PLAINTIFF’S AMENDED COMPLAINT RELATE BACK TO THE FACTS ALLEGED IN PLAINTIFF’S ORIGINAL COMPLAINT.

Plaintiff’s incident on board the Carnival cruise took place on June 16, 2010. [D.E. 26,6]. The original Complaint in this matter was filed on May 18, 2011 [D.E. 1]. Therefore, Plaintiff filed his lawsuit within the applicable one-year statute of limitations set forth in Carnival’s passenger ticket contract. For Defendant to claim that Plaintiff’s claims are time barred is therefore simply disingenuous.

In the original Complaint [D.E. 1], Plaintiff filed claims against Carnival on grounds of Neglience (Count I), Apparent Agency for Acts of Defendant Dr. Doe (Count IV), and Joint Venture (Count V). At the time the original complaint was filed, because Plaintiff did not know the identity of any of the shipboard medical personnel, Plaintiff also filed suit against fictitious Defendant “Dr. Doe” as the generic Medical Defendant in the Complaint (Count III). Immediately thereafter, Plaintiff requested Defendant Carnival to provide him with the actual names of all the medical personnel that treated the Plaintiff on board the subject cruise.

In the Amended Complaint [D.E. 26], Plaintiff alleges the same claims as those alleged in the original Complaint [D.E. 1]: Negligence, Apparent Agency and Joint Venture. The only difference between the original and the amended pleading is that Plaintiff substituted the fictitious “Dr. Doe” name for the actual names of the shipboard personnel that treated Plaintiff on the vessel: Djorde Debeljacki, Shadhihara Palaboyidoddi Krishn Anita Van Der Tas, Anitha Shashidhar, and Sharon Fisher. Throughout the Amended Complaint, these are referred to as “The Medical Defendants.”

Therefore, as shown below, contrary to Defendant’s assertions, the claims against him in the Amended Complaint relate back to the original complaint.

1. The fictitious generic Defendant “Dr. Doe” in the original complaint was meant to encompass all of the shipboard medical personnel aboard the Carnival cruise.

The fictitious defendant rule allows a plaintiff to initially name a “fictitious defendant” in place of an actual person or corporation and subsequently amend the complaint to add a newly identified party even after the statute of limitations has expired. Carroll v. SetCon Indus., 2011 U.S. Dist. LEXIS 17931 (D. N.J. 2011). Thus, if the Defendant’s true name is unknown to the plaintiff, initially process may issue against the defendant under a fictitious name, stating it to be fictitious. Id. Accordingly, the statute of limitations may be tolled if the Plaintiff invokes the fictitious Defendant rule before the expiration of the statute of limitations. DeRienzo v. Harvard Indus., Inc., 357 F. 3d 348, 352-54 (3d Cir. 2004). See also Saxton v. ACF Industries, Inc., 254 F. 3d 959 (11^th Cir. 2001); Ex parte Nationwide Ins. Co., 991 So. 2d 1287 (Ala. 2008) (In order to invoke the relation-back principle and proceed under the fictitious-party rule a party must have been ignorant of the true identity of the defendant and must have used due diligence in attempting to discover it).

Here, at the time that the original complaint was filed within the one-year period, Plaintiff did not know the identity of the people that treated him at the medical facility on board the ship. As a result, Plaintiff invoked the fictitious defendant rule, selecting the name “Dr. Doe” – to encompass all of the medical defendants aboard the ship (physicians and nurses alike). This was particularly the case for the allegations of Negligence against Defendant Dr. Krishn.

Immediately upon learning of the identities of the people that treated him in the shipboard medical facility: Plaintiff filed an Amended Complaint, naming the shipboard doctors and nurses, and substituting, Dr. Doe with “the Medical Defendants.”

Thus, because Plaintiff met all of the requirements of the fictitious defendant rule; the claim in the Amended Complaint for Negligence against Defendant Dr. Krishn (Count III), relates back to the Negligence claim in the original Complaint against fictions named Defendant “Dr. Doe.”

Long-standing jurisprudence agrees with this conclusion. See, Kemper Insurance Companies, Inc. v. Federal Express Corporation & Does, 115 F. Supp. 2d 116 (D. Mass. 2000):

The Federal Rules of Procedure make no mention of mechanisms for pleading against unnamed parties through the use of the legal fiction of John Doe or Jane Roe. Of course, this fiction has been allowed in order to proceed against parties who are not known at the time the complaint is filed, but whose identities may be learned through the discovery process. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). “As Bivens … recognize[s], when, as here, a party is ignorant of defendants’ true identity, it is unnecessary to name them until their identity can be learned through discovery or through the aid of the trial court.” Maclin v. Paulson, 627 F. 2d 83, 87 (7th Cir.1980).

Id. (emphasis added); Lindley v. General Electric Company, etc., 780 F. 2d 797 (9th Cir. 1986):

When a defendant is brought in by amendment substituting his name for a Doe defendant, he “is considered a party to the action from its commencement for purposes of the statute of limitations.”

Id.; Palestini v. General Dynamics Corporation, 193 F.R.D. 654 (S.D. Cal. 2000) (“Amendments substituting a named defendant previously sued under a fictitious name relate back to the filing of the original complaint when recovery is sought in both pleadings on the same general set of facts”); Saxton v. ACF Industries, Inc., 254 F. 3d 959 (11^th Cir. 2001) (An amendment substituting an actual defendant for a fictitious defendant relates back when: (1) the original complaint adequately described the fictitious defendant; (2) the original complaint stated a claim against the fictitious defendant; (3) the plaintiff was ignorant of the true identity of the defendant; and (4) the plaintiff used due diligence to discover the defendant’s true identity).

2. Pursuant to Federal Rule of Civil Procedure 15(c) the allegations of Negligence in the Amended Complaint against Defendant Dr. Krishn relate back to the original pleading. Under Rule 15(c)(1)(B), Defendant Dr. Krishn’s claim “arose out of the conduct, transaction or occurrence set out” in the original pleading alleging Negligence against fictitious Dr. Doe.

Federal Rule of Civil Procedure 15(c) “Relation Back of Amendments” provides, in part:

(1)When an Amendment Relates Back. An amendment relates back to the date of the original pleading when: … (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading; or (C) the amendment changes the party or the naming of the party against whom the claim is asserted, if Rule 15(c)(1)(B) is satisfied.

Id. (emphasis added).

Here, the Amended Complaint is clearly asserting claims that arose out of the same transaction or conduct or occurrence set out in the original Complaint. Thus, as shown below, pursuant to Federal Rule of Civil Procedure 15(c), the negligence claim in Count III of the Amended Complaint against Defendant Dr. Krishn relates back to the negligence claim in Count III of the original Complaint against fictitious “Dr. Doe.”

a. The claims against Defendant Dr. Krishn in Count III of the Amended Complaint “arise out of the conduct, transaction or occurrence set out in the original pleading.”

As set forth above, Federal Rule of Civil Procedure 15(c)(1)(B) states, “[a]n amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out in the original pleading.” “An Amendment relates back [even if] the new claims constitute added events leading up to the same injury or an added theory of liability for the same occurrence.” Anderson v. Young Touchstone Co., 735 F. Supp. 2d 831 (W.D. Tenn. 2010), citing Miller v. Am. Heavy Lift Shipping, 231 F. 3d 242, 248-49 (6th Cir. 2000). “The criterion of relation back is whether the original complaint gave the defendant enough notice of the nature and scope of the plaintiff’s claim that he shouldn’t have been surprised by the amplification of the allegations in the original complaint in the amended one.” Id., citing U.S. ex rel. Bledsoe v. Comm. Health Sys., Inc., 501 F. 3d 493, 516 (6th Cir. 2007) and Santamarina v. Sears, Roebuck & Co., 466 F. 3d 570, 573 (7th Cir. 2006).

Here, the proposed amendments are timely within the relation-back doctrine. Plaintiff’s claims in the Amended Complaint (the allegations of Neglience against Defendant Dr. Krishn) arise out of the same injury as the claim of Negligence in the original Complaint against Dr. Doe; namely that Plaintiff received substandard medical treatment which deviated from acceptable care standards while aboard the ship. Plaintiff’s amendment thus merely alleges with more particularity the identity of the medical staff.See Palestini v. General Dynamics Corporation, 193 F.R.D. 654 (S.D. Cal. 2000) (“Procedurally, relation back requires only that the Plaintiff “set forth or attempted to set forth some cause of action against the fictitiously named defendants” in the original complaint”); Daily v. Monte, 26 F. Supp. 2d 984 (E.D. Michigan) (Inmate’s amended complaint against prison officials and guards in failure to protect suit, which substituted proper names of prison guards for “John Does,” related back to timely original complaint); See also Anderson v. Young Touchstone Co., 735 F. Supp. 2d 831 (W.D. Tenn. 2010):

The Court agrees with Plaintiff that the proposed amendments are timely within the relation-back doctrine. It is clear to this Court that Plaintiff’s amended complaint “arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading[.] ” Fed. R. Civ. P. 15(c)(1)(B). Plaintiff’s amended claims arise out of the same injury as his original claims; namely, his termination by Defendant in September 2008. Plaintiff’s proposed amendments merely constitute an added theory of liability for the same occurrence. Because the relation back doctrine is applicable, the amended complaint is measured from the filing of the original complaint on August 19, 2009, and not the filing of the amended complaint on March 23, 2010. Plaintiff’s amended claims, therefore, are not time-barred by Tennessee’s one-year statute of limitations.

Id. (emphasis added).

III. ALTERNATIVELY, BECAUSE THE MEDICAL DEFENDANTS ARE NOT A PARTY TO THE PASSENGER TICKET CONTRACT (AN AGREEMENT BETWEEN PLAINTIFF AND CARNIVAL ONLY); THE MEDICAL DEFENDANTS CANNOT RELY ON THE TICKET’S 1-YEAR LIMITATION PROVISION. INSTEAD, THE CLAIMS AGAINST THE MEDICAL DEFENDANTS ARE GOVERNED BY THE STANDARD 3-YEAR STATUTE OF LIMITATIONS.

1. The Medical Defendant’s are not a party to the passenger ticket contract. The agreement is between Carnival and the Plaintiff only. Therefore, because the Medical Defendants cannot rely on the limitation provision of a contract they are not a party to; the standard 3 years statute of limitations applies to claims against them.

The Medical Defendants primary argument is that Plaintiff should have filed his claims against them within a year after the subject incident. As set forth above, Plaintiff contends that he did file his claims within a year of the subject incident and that any subsequent amendments to the complaint relate back to the filing of the original complaint.
However, even if for the sake of argument this had not been the case, the Plaintiff was not required to file his claims against the Medical Defendants within a year. Rather, this requirement was limited to claims against Carnival.

The Medical Defendants cannot rely on the limitations provision in a contract exclusively between Carnival and the Plaintiff (passenger). In support of the argument that Plaintiff was required to file his claims against the Medical Defendants within a year after the incident, the Medical Defendants cite to passenger ticket contract between Carnival and Plaintiff. In support of their argument they cite clause 12(a) of the contract which provides as follows:

Carnival shall not be liable for any claims whatsoever for personal injury, illness or death of the guest, unless full particulars in writing are given to Carnival within 185 days after the date of such injury …. giving rise to the claim. Suit to recover on any such claims shall not be maintainable unless filed within one year after the date of the injury … and unless served on Carnival 120 days after commencement.

Id. (emphasis added).

Notably, the passenger ticket contract is exclusively between the passenger (Plaintiff) and Carnival. Plaintiff paid money to Carnival and in exchange Carnival agreed to transport Plaintiff in one of its vessels. The nature of this transaction is memorialized at page 1 of the contract, stating: “In consideration of the receipt of the full cruise fare, Carnival Cruise Lines (“Carnival”) agrees to transport guest on the above – specified voyage on the following terms and conditions.” [4]

As result, only the parties to that contract (Carnival and Plaintiff) should be entitled to rely on the rights and liabilities thereunder. This is particularly the case from the plain language of the 1-year limitation provision itself. This provision makes no mention of claims against Medical personnel on the ship. Rather, it specifically states that “Carnival shall not be liable for any claims … unless filed within one year after date of injury.”

Thus, because 1) this contract is exclusively between Carnival and Plaintiff, and 2) the plain language of the 1-year limitation provision sets forth that it only applies to Carnival; the Medical Defendants (a non-party to the contract) cannot rely on it.

To the extent that the Medical Defendants claim that they are “beneficiaries” of the contract; such an inquiry presents questions of fact premature at the Motion to Dismiss stage. In the Motion to Dismiss, the Medical Defendants seem to be making the argument that although they are not parties to the passenger ticket contract, they are intended beneficiaries. This is a question of fact, premature at the motion to dismiss stage.

Whether the Medical Defendants were “beneficiaries” of the passenger ticket (including the 1-year limitations provision) as the Medical Defendants seem to be claiming, comes down to ascertaining the intent of the contracting parties. To do so, however, would require the Court to interpret Carnival’s passenger ticket contract and make determinations of fact. Because the ticket contract is a document outside of the four corners of the Complaint, such determinations of fact are premature at the Motion to Dismiss stage. See Federal Deposit Insurance Corporation v. Grant, et al., 8 F. Supp. 2d 1275 (N.D. Ok. 1998) (“Whether an action is barred by the applicable statute of limitations is a question of fact to be determined by considering the evidence in each case.”); Debary v. Harrah’s Operating Co., Inc. 465 F. Supp. 2d 250 (S.D. NY. 2006) (“[T]hird party beneficiary status is a question of fact because the issue turns on whether the contracting parties intended their agreement to directly benefit a third-party”); See also Bridgewater v. Carnival Corp., 10-22241-CIV, 2011 WL 817936, at *2 n. 3 (S.D. Fla. Mar. 2, 2011) (holding that interpretation of Carnival passenger ticket contract requires determinations of fact premature at the motion to dismiss stage).

Because the passenger ticket contract does not apply to the Medical Defendants, the applicable 3-year statute of limitations for admiralty claims applies in this case. The general maritime law of the United States governs this case. Keefe v. Bahama Cruise Lines, Ltd., 867 F. 2d 1318 (11th Cir. 1989). (The law governing suits involving passengers against cruise lines is the general maritime law of the United States). Under general maritime law, the statute of limitations for commencing a suit to recover damages in negligence for personal injury is three years from the date the cause of action accrued. See 46 U.S.C. § 30106:

Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.

As set forth above, the subject incident in this matter took place on June 16, 2010. Plaintiff filed his original complaint on May 18, 2011 (well within the 3-year statutory period). Moreover, his Amended Complaint was filed on January 23, 2012 (also well within the 3-year statutory period).

IV. THE DOCTRINE OF EQUITABLE ESTOPPEL PREVENTS THE MEDICAL DEFENDANTS FROM RELYING ON THE 1-YEAR LIMITATIONS PERIOD.

The Medical Defendants should be estopped from relying on Carnival’s 1-year limitations period. At the time that Plaintiff filed her initial complaint (on May 18, 2011) well within the 1-year period, Plaintiff did not know the names of the Medical Defendants that treated her. Immediately thereafter Plaintiff repeatedly asked Carnival (who is contractually required to defend and indemnify the Medical Defendants) for the names of the shipboard medical personnel that treated the Plaintiff on the ship so that he could add these names into the Complaint. Whether purposefully or not, Carnival did not provide this information until December, 2011 (6 months after the 1-year limitations period had expired).

This is precisely what the Defendants have done here. At all times material, Carnival (who has a contractual responsibility to defend and indemnify the Medical Defendants) had exclusive custody and/or control over the names of the shipboard medical personnel that treated the Plaintiff. Rather than providing these names upon request, Carnival waited until after the expiration of the 1-year period to provide them. Such delay unfairly benefits the Medical Defendants and Carnival, at the expense of the Plaintiff. See Del Sontro v. Cendant Corp. Inc., 223 F. Supp. 2d 563 (D. NJ. 2002), citing Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1070 (7th Cir. 1978):

[E]quitable estoppel “is not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.”

WHEREFORE, for the reasons set forth above, Defendant Krishn’s Motion to Dismiss should be denied in its entirety.

Work in Progress

April 23, 2012

Ortega v. Carnival Corp. et al