Carmouche v. Carnival Corp.

36 F. Supp. 3d 1335, 2014 WL 3894361, 2014 U.S. Dist. LEXIS 110989
CourtDistrict Court, S.D. Florida
DecidedAugust 7, 2014
DocketCase No. 13-62584-CV
StatusPublished
Cited by23 cases

This text of 36 F. Supp. 3d 1335 (Carmouche v. Carnival Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carmouche v. Carnival Corp., 36 F. Supp. 3d 1335, 2014 WL 3894361, 2014 U.S. Dist. LEXIS 110989 (S.D. Fla. 2014).

Opinion

ORDER GRANTING DEFENDANT TAMBORLEE’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

WILLIAM P. DIMITROULEAS, District Judge.

This matter is before the Court upon Defendant Tamborlee Management, Inc. [1337]*1337d/b/a Belize Paradise, Ltd. (“Tamborlee”)’s Motion to Dismiss for Lack of Personal Jurisdiction [DE 35], filed herein on June 10, 2014. The Court has reviewed the Motion, responses and replies, all exhibits filed in the record, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff commenced the instant action on November 26, 2013. [DE 1]. According to the allegations of the Complaint, this is an action for negligence that arose on a shore excursion which was alleged to have been organized, promoted, advertised, marketed vouched for, and sold by Defendant Carnival Corporation (“Carnival”) for its cruise passengers, including Plaintiff. ¶¶ 6, 10, 13. Defendant, Tamborlee Management, Inc., d/b/a Belize Paradise Limited (“Tamborlee”) operated shore excursions for Carnival passengers in Belize and owned or had control over the facilities where Carnival’s passengers were taken, and equipment, including vehicles, utilized by said passengers on such excursion. ¶ 19.

The cruise excursion on which the incident occurred took place in Belize. ¶ 9. On November 29, 2012, while on a Tamborlee shore excursion in Belize, “Plaintiff was riding on a bench in the back of a vehicle provided part of the excursion that had no seatbelts or harnesses when, suddenly and without warning, she was thrown across the vehicle onto a steel bench on the other side of the vehicle, causing her to fracture her ankle in multiple places as well as dislocating it.” ¶ 14.

Plaintiffs Complaint [DE 1] asserts two counts against Defendants, as follows: Count I — Negligence and Other Actions and Inactions of Carnival; and Count II— Negligence and Other Actions and Inac-tions of Tamborlee.

Defendant Carnival moved to dismiss Plaintiffs Complaint, which Motion the Court granted in part and denied in part on May 15, 2014. See [DE 33]. On May 29, 2014, Carnival filed its Answer and Affirmative Defenses. See [DE 34].

On May 4, 2014, Defendant Tamborlee first moved to dismiss for lack of personal jurisdiction. See [DE 17], In response, Plaintiff sought to conduct jurisdictional discovery. See [DE 24]. Determining that jurisdictional discovery was warranted, and noting agreement by Tamborlee, the Court granted Plaintiffs request. See [DE 27], After conducting jurisdictional discovery, Tamborlee renewed its motion, seeking to dismiss the instant action for want of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). See [DE 35],

II. STANDARD OF REVIEW

In analyzing a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the court must: (1) determine whether the forum state’s long arm statute provides a basis for jurisdiction; and (2) determine whether the exercise of jurisdiction comports with due process. Abramson v. Walt Disney Co., 132 Fed.Appx. 273, 275 (11th Cir.2005) (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). Because the reach of Florida’s long arm statute is a question of state law, the court must construe the statute as would the Florida Supreme Court. Id. (citing Madara, 916 F.2d at 1514). Moreover, the Eleventh Circuit has noted that the statute should be strictly construed. See Oriental Imports and Exports, Inc. v. Maduro & Curiel’s Bank, 701 F.2d 889, 891 (11th Cir.1983) (internal citations omitted).

Typically, where the parties submit evi-dentiary materials in support of their positions, consideration of those materials would convert the motion to dismiss into one for summary judgment. Steinberg v. [1338]*1338A Analyst Ltd., 2009 WL 806780, at *3 (S.D.Fla. Mar. 26, 2009) (citing Fed. R.Civ.P. 12(b)). However, where the court has permitted the parties to engage in jurisdictional discovery, consideration of evidence outside the pleadings does not have such effect: “in the context of personal jurisdiction the motion remains one to dismiss even if evidence outside the pleadings is considered.” Id. (citing Bracewell v. Nicholson Air Services, Inc., 748 F.2d 1499, 1501 n. 1 (11th Cir.1984)).

Absent an evidentiary hearing, the plaintiff bears the initial burden of presenting a prima facie case for personal jurisdiction. Internet Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir.2009). A plaintiff makes out a prima facie case if she presents sufficient evidence to withstand -a motion for directed verdict. Madara, 916 F.2d at 1514; Cable/Home Commc’n Corp. v. Network Prod., Inc., 902 F.2d 829, 855 (11th Cir.1990). The court must accept the facts alleged in the plaintiffs complaint as true, to the extent that they are not contradicted by the defendant’s affidavits. Cable/Home, 902 F.2d at 855. Once the plaintiff pleads sufficient material facts to form a basis for in per-sonam jurisdiction, the burden shifts to the defendant to challenge plaintiffs allegations by affidavits or other pleadings. Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 586 (M.D.Fla.1991). If defendant sufficiently challenges plaintiffs assertions through affidavits, documents, or testimony, then the burden shifts back to plaintiff, who must affirmatively support its jurisdictional allegations and may not merely rely upon factual allegations set forth in the complaint. Id.; Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.1996). Where evidence conflicts, the court must construe all reasonable inferences in favor of plaintiff. Cable/Home, 902 F.2d at 855; Madara, 916 F.2d at 1514.

III. DISCUSSION

A. Facts relevant to personal jurisdiction analysis

Defendant Tamborlee is a foreign corporation, registered in and existing under the laws of Panama.1 William Mackenzie (“Mackenzie”), a non-US citizen and a Belize resident, founded the company in 2004 with his friend and business acquaintance, Peter Norquoy (“Norquoy”), a South African national who operated shore excursions in Cozumel, Mexico, and Key West, Florida. See [DE 35] at ¶¶ 14, 15. In 2005, through contacts obtained by Nor-quoy, Mackenzie was able to procure a contract between Tamborlee and Carnival, wherein Tamborlee agreed to provide shore excursions to Carnival passengers in Belize. See Id. at ¶¶ 16,18.

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36 F. Supp. 3d 1335, 2014 WL 3894361, 2014 U.S. Dist. LEXIS 110989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmouche-v-carnival-corp-flsd-2014.