Portnof v. Tura Turizm – Continued

Lipcon, Margulies & Winkleman, P.A

November 09, 2012

Portnof v. Tura Turizm – Continued

Motion for Entry of Default Judgment

Shore excursion providers who challenge the jurisdiction of courts in the United States, must still file a responsive pleading to a complaint, or face the entry of a default judgment. In this case, a shore excursion provider failed to respond to a Plaintiff’s complaint in the time required by the federal rules of civil procedure. Accordingly, our experienced maritime attorneys moved the court for entry of default judgment.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12-CV-23000-SEITZ/SIMONTON
FRANCES PORTNOF,
Plaintiff,

v.

CELEBRITY CRUISES INC., TURA TURIZM,
and XYZ CORPORATION(S),
Defendants.

PLAINTIFF’S MOTION FOR ENTRY OF FINAL JUDGMENT AS TO LIABILITY ONLY AGAINST DEFENDANT, TURA TURIZM

COMES NOW, the Plaintiff, FRANCES PORTNOF (“Plaintiff”), by and through undersigned counsel, hereby files the instant Motion for Entry of Final Judgment as to Liability Only Against Defendant, TURA TURIZM, pursuant to Federal Rule of Civil Procedure 55 and the Clerk’s Entry of Default on November 7, 2012 [D.E. 11]. In support thereof, the Plaintiff states as follows:

I. Introduction

The instant matter arises out of severe injuries sustained by the Plaintiff during a cruise aboard Defendant, CELEBRITY CRUISES INC.’S (“Celebrity[’s]” or “CCI[’s]”) vessel, the Celebrity Equinox. [D.E. 1, 12, 18-19]. As part of the cruise experience, Celebrity offered passengers aboard the Celebrity Equinox, including the Plaintiff, the opportunity to go on various shore excursions during the subject cruise. [D.E. 1, 14]. One of these excursions was “Colors, Scents and Trends of Istanbul,” which was taking place in the scheduled port of call of Istanbul, Turkey. [D.E. 1, 16]. The excursion was jointly owned and/or operated by Celebrity and Tura Turizm. [D.E. 1, 14, 22].

The Plaintiff purchased the ticket for the excursion directly from Celebrity and, on September 3, 2011, she participated in the excursion. [D.E. 1, 16, 18]. Pursuant to the description provided on Celebrity’s website, the excursion consisted of a “ride to Taksim Square for a walking tour on Istiklal Street.” [See Exhibit “1”.] The Plaintiff boarded the bus for the excursion. As she passed several rows looking for a seat, she suddenly tripped and fell over a hidden downward step in the middle of the bus. [D.E. 1, 19]. As a result thereof, she sustained severe and permanent injuries, including, but not limited to, a fracture to her left foot. [D.E. 1, 19].

II. Procedural History and The Clerk’s Entry of Default Against Tura Turizm

The Complaint in this matter was filed on August 16, 2012. [D.E. 1].[1] Plaintiff’s claims against Tura Turizm include Negligence (Count I), Joint Venture (IV) and Third Party Beneficiary (Count V). [D.E. 1]. Tura Turizm was served a copy of the Complaint and Summons through multiple methods. First, on August 22, 2012, pursuant to Florida Statutes §48.181, the Florida Department of State, Secretary of State, Division of Corporations, accepted service for Tura Turizm [D.E. 5-1]. Second, on September 12, 2012, the Plaintiff directly mailed via U.S. Certified Mail, Return Receipt Request, a copy of the Complaint and Summons to Tura Turizm at their Miami office located in 3230 Matilda Street, Miami, Florida 33133.[2] On September 13, 2012, the Plaintiff filed an Affidavit of Service with a copy of the stamped and addressed registered mail sent to Tura Turizm. [D.E. 5-2].

Despite the aforementioned service, however, Tura Turizm failed to serve a responsive pleading. Accordingly, on November 7, 2012, the Plaintiff moved for the Clerk’s entry of default as to liability only against Tura Turizm. [D.E. 10]. As stated in her motion for default, Federal Rule of Civil Procedure 4 provides that a corporation, partnership, or association may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual; or…. by also mailing a copy of each [the summons and of the complaint] to the defendant.” Fed. R. Civ. P. 4(h). Therefore, according to this Court’s prior holding, Tura Turizm was properly served pursuant to Rule 4 of the Federal Rules of Civil Procedure. See Balachander v. NCL (Bahamas) and Rey Ponteras, 1:11-cv-21064-JLK (S.D. Fla. 2011) [D.E. 25, p. 3]. In Balachander, this Court stated:

The docket sheet reflects that a summons for service abroad was returned executed on May 12, 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 correct. 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(2)(C)(2).

Id. (emphasis added).

Based on the foregoing facts and law, on November 7, 2012, the Clerk declared Tura Turizm in default “for failure to appear, answer or otherwise plead to the complaint filed herein within the time required by law.” [D.E. 11]. To date, Tura Turizm has not sought to vacate the default or otherwise appear and defend this action.

III. This Honorable Court should enter Final Default Judgment against Tura Turizm.

Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter a default judgment against a properly served defendant, who, like Tura Turizm here, failed to file a timely responsive pleading. “If the Court determines that the defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Crowley Liner Services, Inc. v. Transtainer Corp., 0621995CIVOSULLIVAN, 2007 WL 1526955 (S.D. Fla. May 24, 2007) (citing Nishimatsu Const. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975))[3] ; see also Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987); PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1217 (S.D. Fla. 2004).

“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.” Crowley, supra (citing Nishimatsu, supra). Moreover, “[a] default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.” Id.; see also Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010) (“It is nearly axiomatic that when a default judgment is entered, facts alleged in the complaint may not be later contested.”).

Accordingly, by virtue of its default, Tura Turizm has admitted the well-pleaded allegations of Negligence (Count I), Joint Venture (IV) and Third Party Beneficiary (Count V) in the Complaint. [D.E. 1].

A.By virtue of its default, Tura Turizm has admitted the well-pleaded allegations of Negligence (Count I) in the Complaint.

In order to satisfy the burden of proof in a negligence action, the Plaintiff must show that: 1) the defendant owed plaintiff a duty; 2) the defendant breached that duty; 3) the breach was the proximate cause of the Plaintiff’s injury; and 4) the Plaintiff suffered damages. Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).

As to the first element, in the context of admiralty torts, “duty” was defined in the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). In Kermarec, the Supreme Court held that the owner of a ship owe the duty of exercising reasonable care under the circumstances of each case. This duty also applies to Tura Turizm as a carrier and the ship owner’s agent. See Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1290 (9th Cir. 1997) (“the principles of carrier liability are not limited to shipowners”). Herein, the Plaintiff succinctly alleged in paragraph 36 of the Complaint that “[i]t was the duty of the Excursion Entities[4] to provide Plaintiff with reasonable care under the circumstances.” [D.E. 1, 36]. The Plaintiff therefore pleaded the correct duty of care in this matter.

The applicable standard of reasonable care also “requires, as a prerequisite to imposing liability, that the carrier had actual or constructive notice of the risk creating condition.” Keefe v. Bahama Cruise Line., Inc., 867 F. 2d 1318 (11th Cir. 1989). Constructive notice may be established through evidence which shows 1) that the dangerous condition existed for such a length of time that in the exercise of ordinary care, the defendant should have known of the condition; or 2) that the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). Herein, the Plaintiff also pleaded such constructive notice in Paragraph 40. (“The Excursion Entities knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that the Excursion Entities, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.”)

The Plaintiff also pleaded the second element in Paragraph 37 that “[o]n or about September 3, 2011, the Excursion Entities and/or their agents, servants, joint venturers and/or employees breached their duty to provide Plaintiff with reasonable care under the circumstances.” [D.E. 1, 37]. In support of that allegation, the Plaintiff pleaded with sufficient factual matter the ways in which Tura Turizm breached that standard of care including, inter alia, its failure to:

e. … adequately inspect and/or routinely monitor the bus for the subject excursion so as to ensure that it was reasonably safe for cruise ship passengers; and/or
f. … adequately mark the downward step in the bus so that it was readily apparent to Plaintiff and other cruise passengers participating in the subject shore excursion; and/or ….
h. … adequately warn the Plaintiff of the danger posed by the downward step in the bus used for the subject shore excursion; and/or
j. … promulgate and/or enforce adequate policies and procedures to ensure that participants of the subject shore excursion are warned about the danger posed by the downward step in the bus; ….
[D.E. 1, 38(a)-(x)].

It remains black-letter law today that a complaint need not provide detailed factual allegations. As the Supreme Court explained, Rule “8(a)(2) requires only a short and plain statement of the claim showing that a pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S. Ct. 1955, 1959, 167 L. Ed. 2d 929 (2007). The statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (citing Twombly, supra.).

Accordingly, the Plaintiff set forth in succinct, enumerated statements Tura Turizm’s negligence with sufficient particularity to give Tura Turizm notice of what the claim is and the grounds upon which it rests in accordance with Federal Rule of Civil Procedure 8(a) and the Supreme Court’s cases in Erickson, and Twombly. Moreover, these facts are sufficient to draw a reasonable inference of negligence against Tura Turizm. See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)).

Furthermore, with regard to the third and fourth elements, Plaintiff alleged in paragraphs 38 and 41 that the enumerated actions and/or inactions of Tura Turizm “caused the Plaintiff to trip and fall over a hidden downward step while boarding the bus for the Colors, Scents and Trends of Istanbul shore excursion…. [and] [a]s a result of the negligence of [Tura Turizm], the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement…” [D.E. 1, 38, 41]. Accordingly, the Plaintiff correctly pleaded that the breach was the proximate cause of the Plaintiff’s injury and that the Plaintiff suffered damages.

On these grounds and as a result of its default, Tura Turizm admitted the Plaintiff’s well-pleaded allegations of fact supporting negligence (Count II), is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. See Crowley Liner Services, Inc. v. Transtainer Corp., 0621995CIVOSULLIVAN, 2007 WL 1526955 (S.D. Fla. May 24, 2007) (citing Nishimatsu Constr. Co., Ltd., v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

B.By virtue of its default, Tura Turizm has admitted the well-pleaded allegations of Joint Venture (Count IV) in the Complaint.

Count IV of the Plaintiff’s Complaint alleged that Tura Turizm engaged in a joint venture with Celebrity to provide excursions to passengers aboard Celebrity ships. [D.E. 1, 50].

As the Florida Supreme Court stated in Kislack v. Kreedian, “the relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.” Kislack, 95 So. 2d 510, 515 (Fla. 1957). Florida courts have held that in order to create a joint venture relationship, there must be concurrence of the following elements: 1) a community of interest in the performance of the common purpose; 2) joint control or right of control; 3) a joint` proprietary interest in the subject matter; 4) a right to share in the profits; and 5) a duty to share in any losses which may be sustained. Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla. 3d DCA 1974). The elements for asserting a joint venture claim under Florida law and federal common law are similar. However, federal common law imposes the element of intent to create a joint venture, but does not impose the Florida law element of a community interest in the performance of a common purpose. Skeen v. Carnival Corp., 08-22618-CIV, 2009 WL 1117432 at *3 n.3 (S.D. Fla. Apr. 24, 2009). Herein, the Plaintiff’s Complaint sufficiently alleged joint venture under both Florida law and federal common law.

First, the Complaint alleged element one by showing a community of interest between Tura Turizm and Celebrity in the performance of a common purpose as required under Florida law—providing excursions to passengers aboard the ship. [D.E. 1, 50, 59(a)]. The Complaint also alleged the existence of an agreement and, therefore, the requisite intention by the parties as required under federal common law.[5] For instance, the Complaint states in relevant part:

… [A]t all times material hereto, a partnership and/or joint venture existed between the Excursion Entities by virtue of the following, whereby CCI and the Excursion Entities are jointly and severally responsible for the negligence of each other as partners of the partnership and/or joint venture:

CCI and the Excursion Entities entered into an agreement whereby: CCI made all arrangements for the Plaintiff, on behalf of the partnership with the Excursion Entities, for the subject excursion being run by the Excursion Entities…. [D.E. 1, 23(a)] (emphasis added).

The parties’ intention is also reflected in paragraph 51, which alleged that “CCI and [Tura Turizm] entered into an agreement where CCI would sell the subject shore excursion to its passengers and [Tura Turizm] would operate the subject shore excursion.”

As to element two, the Plaintiff alleged that Tura Turizm had joint control of the joint venture with Celebrity. As part of the joint venture, Tura Turizm ran the subject excursion and had control over the day-to-day workings of the excursion. [D.E. 1, 10, 23, 51, 54, 59(c)]. Celebrity, in turn, arranged for, sponsored, recommended, marketed, operated, supervised, sold the subject and/or dealt with the financial aspects of the shore excursion. [D.E. 1, 10, 13-16, 18, 23, 52-54, 59(c)].

Further, the Plaintiff sufficiently alleged element three—a joint proprietary interest in the subject matter. A joint proprietary interest generally requires joint ownership of the subject matter of the contract. Progress Rail Servs. Corp. v. Hillsborough Reg’l Transit Auth., 2005 U.S. Dist. LEXIS 37729 (M.D. Fla. 2005) (citing Dreyfuss v. Dreyfuss, 701 So. 2d 437, 439 (Fla. 3d DCA 1997)). Herein, Plaintiff alleges that Tura Turizm had a joint proprietary ownership interest in the subject shore excursion with Celebrity because both parties had an ownership interest in the time and/or property they contributed to the joint venture. [D.E. 1, 56, 57(b)].

Lastly, both elements four and five were concisely pled in the Plaintiff’s Complaint: “CCI shared profits and losses with [Tura Turizm] for the subject excursion.” [D.E. 1, 23(h), 57, 59(d), 59(e)]. In certain situations, where one party supplies labor and skill (such as Tura Turizm), the other supplies capital (such as Celebrity) and both agree to share in the profits of the venture, Florida courts concluded an agreement to share losses exists as a matter of law “since in the event of a loss, the party supplying the knowhow would have exercised his skill in vain and the party supplying the capital investment would have suffered a diminishment thereof.” Williams v. Obstfeld, 314 F.3d 1270, 1276 (11th Cir. 2002) (quoting Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla. 3d DCA 1974)).

Furthermore, binding Eleventh Circuit precedent makes clear that the elements of a joint venture “cannot be applied mechanically” and that “[n]o one aspect of the relationship is decisive.” Fulcher’s Point Pride Seafood, Inc. v. M/V “Lady Mary,” 935 F.2d 208, 211 (11th Cir. 1991) (citing Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978)). Pursuant to this case, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added); see also Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (“failure to specifically allege that the parties intended to create a joint venture is not fatal so long as the other allegations provide enough factual material to make it plausible that the parties intended to create one”). Herein, the Complaint includes enough information from which it can be inferred that Tura Turizm intended to form into a joint venture with Celebrity (i.e., they entered into an agreement to set up the joint venture; they each had control over the venture; they shared profits and losses; etc.) [D.E. 1, 23, 50-61]).

On these grounds and as a result of its default, Tura Turizm admitted the Plaintiff’s well-pleaded allegations of fact supporting its joint venture with Celebrity (Count IV), is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. See Crowley Liner Services, Inc. v. Transtainer Corp., 0621995CIVOSULLIVAN, 2007 WL 1526955 (S.D. Fla. May 24, 2007) (citing Nishimatsu Constr. Co., Ltd., v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)); see also Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (this Honorable Court denied the excursion entity’s motion to dismiss plaintiff’s joint venture count similar to the one at issue herein.).

C. By virtue of its default, Tura Turizm has admitted the well-pleaded allegations of Third Party Beneficiary (Count V) in the Complaint.

Count V of the Complaint alleges a cause of action for Tura Turizm’s breach of the contract between the Defendants to which the Plaintiff was a third-party beneficiary.

Generally, to maintain a cause of action for breach of a third party beneficiary contract, the party asserting the third party beneficiary status must prove: 1) the existence of the contract, 2) clear or manifest intent of the parties that the contract primarily and directly benefits the third party, 3) breach of a contact by a contracting party, and 4) damages to the third-party resulting from the breach. Steadfast Ins. Co. v. Corporate Protection Security, Inc., 554 F.Supp.2d 1335, 1337 (S.D. Fla. 2008).

The Plaintiff’s Complaint satisfies the first element in paragraph 62, which states that “CCI and [Tura Turizm] entered into a contract to provide excursions for passengers on board CCI’s ship(s).” [D.E. 1, 62].

As to the second element, the intent of the parties is key to determining whether a third party is recognized as an intended beneficiary (with rights to enforce the contract) as opposed to only an incidental beneficiary (with no enforceable rights under the contract).[6] Under Florida law, a third party is an intended beneficiary of a contract between two other parties only if a direct and primary object of the contracting parties was to confer a benefit on the third party. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005); see also Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 680 (11th Cir. 1999) (“A party has a cause of action as a third-party beneficiary to a contract if the contracting parties express an intent primarily and directly to benefit that third party (or a class of persons to which that third party belongs).”). If the contracting parties had no such purpose in mind, then any benefit from the contract reaped by the third party is merely “incidental,” and the third party has no legally enforceable right in the subject matter of the contract. Bochese, 405 F. 3d at 982.

Thus, the test is whether the parties to the contract intended that a third person should benefit from the contract. Bochese, 405 F. 3d at 981 -982; see also Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933) (“[T]he test is[ ] not that the promisee is liable to the third person, or that there is some privity between them or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefitted by the contract.”).

To determine whether a contract was in fact intended for the benefit of a third person, the Eleventh Circuit stated:

The Florida Supreme Court has explained that “[t]he question whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.”

Bochese, 405 F.3d at 982 (emphasis added); see also Progress Rail Services Corp. v. Hillsborough Area Reg’l Transit Auth., 804CV200T23EAJ, 2006 WL 314507 at *1 (M.D. Fla. Feb. 9, 2006) (“For the purpose of determining whether a third-party is an intended beneficiary to a contract, basic contract interpretation rules apply.”) (citing 28 Richard A. Lord Williston on Contracts § 70:226 (4th ed. 2005) (“Ascertaining whether the contracting parties intend to benefit a putative third-party beneficiary is a question of ordinary contract interpretation.”)).

Herein, the Complaint succinctly provides that “[t]he contract between the parties clearly manifested the intent of the contracting parties that the contract primarily and directly benefits the Plaintiff third party by requiring [Tura Turizm] to exercise reasonable care in the operation of the subject excursion” and “requiring the Excursion Entities to maintain insurance”. [D.E. 1, 63-64].

Thereafter, the Plaintiff alleged the third element by providing that “[t]his contract was breached” by Tura Turizm through acts and/or omissions that include, inter alia, its failure to:

e. … adequately inspect and/or routinely monitor the bus for the subject excursion so as to ensure that it was reasonably safe for cruise ship passengers; and/or

f. … adequately mark the downward step in the bus so that it was readily apparent to Plaintiff and other cruise passengers participating in the subject shore excursion; and/or ….

h. … adequately warn the Plaintiff of the danger posed by the downward step in the bus used for the subject shore excursion; and/or

j. … promulgate and/or enforce adequate policies and procedures to ensure that participants of the subject shore excursion are warned about the danger posed by the downward step in the bus; ….

[D.E. 1, 65(a)-(x)].

Accordingly, the Plaintiff set forth in succinct, enumerated statements Tura Turizm’s breach with sufficient particularity to give Tura Turizm notice of what the claim is and the grounds upon which it rests in accordance with Federal Rule of Civil Procedure 8(a) and the Supreme Court’s cases in Erickson, and Twombly.

Furthermore, with regard to the fourth element, Plaintiff alleged in paragraphs 65 and 66 that the enumerated actions and/or inactions of Tura Turizm “caused the Plaintiff to trip and fall over a hidden downward step while boarding the bus for the Colors, Scents and Trends of Istanbul shore excursion…. [and] [a]s a result of the negligence of [Tura Turizm], the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement…” [D.E. 1, 65-66]. Accordingly, the Plaintiff correctly pleaded that damages to the Plaintiff, as the third party, resulted from the breach.

On these grounds and as a result of its default, Tura Turizm admitted the Plaintiff’s well-pleaded allegations of fact supporting her Third Party Beneficiary claim (Count V), is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. See Crowley Liner Services, Inc. v. Transtainer Corp., 0621995CIVOSULLIVAN, 2007 WL 1526955 (S.D. Fla. May 24, 2007) (citing Nishimatsu Constr. Co., Ltd., v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

IV.Conclusion

As a result of its default, Tura Turizm has admitted the Plaintiff’s well-pleaded allegations of Negligence (Count I), Joint Venture (IV) and Third Party Beneficiary (Count V) in the Complaint. [D.E. 1].

WHEREFORE, for the foregoing reasons, the Plaintiff respectfully requests that this Honorable Court enter a Final Default Judgment against Defendant, TURA TURIZM, and such other relief the Court deems just and proper.

 

[1] Celebrity filed its Answer on October 9, 2012 [D.E. 8].

[2] In its website, Tura Turizm specifically listed (and continues to list) such Miami address as one of their offices. [See copy of the “Contact Us” section of the website from December 21, 2011 and November 6, 2012 attached hereto as Exhibit “2”.] According to the U.S. Postal Service, the Plaintiff’s letter containing the Complaint and Summons was delivered on September 15, 2012. [See Exhibit “3”.]

[3] Pursuant to Bonner v. City of Pritchard, Ala., 661 F. 2d 1206, 1207 (11th Cir. 1981), decisions rendered by the former Fifth Circuit prior to October 1, 1981 are binding precedent in the Eleventh Circuit.

[4] The Plaintiff also named XYZ CORPORATION(S) as a Defendant to represent the owner(s) and/or operator(s) of the subject excursion, insofar as such entity has a different name than the named Defendants herein and in the event that discovery reveals that additional entities (other than the named Defendants herein) contributed to the ownership, operation, and/or management of the subject excursion. [D.E. 1, 4]. Throughout the Complaint, Defendants, TURA TURIZM and/or XYZ CORPORATION(S) are collectively referred to as “the Excursion Entities” in a manner so as to retain each Defendant’s separate and individual liability in the event said Defendants are severed. [D.E. 1, 10].

[5] Skeen v. Carnival Corp., 2009 U.S. Dist. Lexis 39355 (S.D. Fla. 2009) (“the failure to allege an agreement between the parties amounted to a failure to assert that the parties intended to enter into a joint venture”)

[6] Florida courts have recognized three types of third party beneficiaries to a contract: (1) donee beneficiaries; (2) creditor beneficiaries; and (3) incidental beneficiaries.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005) (citing Int’l Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968) (citation and internal quotation marks omitted). The key distinction is that the first two categories are classes of “intended” beneficiaries, who have a right to sue for enforcement of the contract, whereas the third category, “third party beneficiaries recognized as incidental beneficiaries [,] have no enforceable rights under a contract.” Id. (emphasis added).