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finding that provisions of cruise operator and excursion company's agreement did not "sufficiently plead that the contract was intended to primarily and directly benefit Plaintiff"
Summary of this case from Giuliani v. NCL (Bahamas), Ltd.Opinion
Case No. 1:18-cv-23033-UU
2019-09-18
Taryn SERRA-CRUZ, Plaintiff, v. CARNIVAL CORP. and Wild Play Adventure – WIPAD, Defendants.
Jacqueline Garcell, Jason Robert Margulies, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff. Jeffrey Eric Foreman, Noah Daniel Silverman, Foreman Friedman, PA, Miami, FL, Carlos Javier Chardon, Hamilton, Miller & Birthisel, L.L.P., Miami, FL, for Defendants.
Jacqueline Garcell, Jason Robert Margulies, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff.
Jeffrey Eric Foreman, Noah Daniel Silverman, Foreman Friedman, PA, Miami, FL, Carlos Javier Chardon, Hamilton, Miller & Birthisel, L.L.P., Miami, FL, for Defendants.
ORDER GRANTING DEFENDANT WIPAD'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
URSULA UNGARO, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant Wild Play Adventure's Motion to Dismiss Plaintiff's Second Amended Complaint for Lack of Personal Jurisdiction (D.E. 37) (the "Motion").
The Court has considered the Motion, the pertinent portions of the record and is otherwise fully advised in the premises.
I. Background
Unless otherwise indicated, the following facts are taken from the Plaintiff's Second Amended Complaint. D.E. 31.
Plaintiff, Taryn Serra-Cruz, is a citizen of New York. D.E. 31 ¶ 1. Defendant Wild Play Adventure ("WIPAD") is an entity based in the Dominican Republic. Id. ¶ 3. Defendant Carnival, a foreign corporation with its principal place of business in Florida, owns, operates, manages and controls the vessel, Carnival Splendor (the "Ship"). Id. ¶ 14. WIPAD owned and operated the excursion "ATV Adventure and Beach" (the "Excursion"), which was offered, arranged for, sponsored, recommended, marketed, sold, co-operated and managed by Carnival. Id. ¶¶ 15, 17. WIPAD entered into a contract with Carnival concerning the Excursion, titled the Standard Shore Excursion Independent Contractor Agreement (the "Agreement"). Id. ¶ 9; D.E. 40-1. The Agreement contains a "consent to jurisdiction" provision, which provides that WIPAD "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 Excursions or terms in this Agreement." D.E. 40-1 ¶ 15(c).
On or about August 17, 2017, Plaintiff was aboard the Ship as a cruise passenger. D.E. 31 ¶ 16. The same day, Plaintiff participated in the Excursion in the Dominican Republic. Id. ¶ 29. Plaintiff had difficulty maneuvering the ATV during the Excursion, and while attempting to navigate over the rough and uneven terrain, Plaintiff crashed and was thrown off the ATV, which landed on top of her. Id. ¶ 29. As a result, Plaintiff suffered severe injuries. Id.
WIPAD moved to dismiss Plaintiff's first amended complaint for lack of personal jurisdiction on November 15, 2018, D.E. 20. This Court denied WIPAD's motion as moot on March 15, 2019 given Plaintiff's Second Amended Complaint. D.E. 32. The parties filed a joint motion requesting the court to deem WIPAD's motion to dismiss responsive to the Second Amended Complaint, D.E. 33, which the Court denied, noting that WIPAD must file a new motion. D.E. 35 at 2. On March 1, 2019, Plaintiff timely filed her Second Amended Complaint. D.E. 31. Plaintiff alleges five causes of action against WIPAD: (1) misleading advertising in violation of Fla. Stat. § 817.41 ; (2) negligence; (3) negligence based on apparent agency or agency by estoppel; (4) negligence based on joint venture; and (5) breach of third-party beneficiary contract. D.E. 31 at 17–51. On March 15, 2019, WIPAD moved to dismiss the Second Amended Complaint for lack of personal jurisdiction. D.E. 37.
II. Legal Standard
"A federal district court sitting in diversity may exercise personal jurisdiction to the extent authorized by the law of the state in which it sits and to the extent allowed under the Constitution." Meier ex rel. Meier v. Sun Intern. Hotels, Ltd. , 288 F.3d 1264, 1269 (11th Cir. 2002) (citing Morris v. SSE, Inc. , 843 F.2d 489, 492 (11th Cir. 1988) ). The Court must determine whether WIPAD's activities satisfy Florida's long-arm statute and, if satisfied, whether the extension of jurisdiction comports with the due process requirements of the Fourteenth Amendment. Meier ex rel. Meier , 288 F.3d at 1269 (citing Posner v. Essex Ins. Co. , 178 F.3d 1209, 1215 (11th Cir. 1999) ("A federal court sitting in diversity may properly exercise jurisdiction over a defendant only if two requirements are met: (1) the long-arm statute, and (2) the Due Process Clause of the Fourteenth Amendment.")).
It is a plaintiff's burden to establish a prima facie case of personal jurisdiction over a foreign defendant. See Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1385 (S.D. Fla. 2014) (citing Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino , 447 F.3d 1357, 1360 (11th Cir. 2006) ). When a defendant has submitted affidavits challenging a court's jurisdiction, the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction, unless the defense affidavits contain only conclusory assertions. Meier , 288 F.3d at 1271. A court must construe all reasonable inferences in favor of the plaintiff when the parties have submitted conflicting evidence of jurisdiction. Madara v. Hall , 916 F.2d 1510, 1514 (11th Cir. 1990). But, when the plaintiff offers no competent evidence to the contrary, a "district court may find that the defendant's unrebutted denials [are] sufficient to negate plaintiff's jurisdictional allegations." Zapata v. Royal Caribbean Cruises, Ltd. , No. 12-cv-21897-COOKE, 2013 WL 1100028, at *2, 2013 LEXIS 36030, at *6 (S.D. Fla. Mar. 15, 2013) (citing United Techs. Corp. v. Mazer , 556 F.3d 1260, 1280 (11th Cir. 2009) ).
III. Analysis
In its Motion, WIPAD argues that the Court cannot exercise personal jurisdiction over it because it is a Dominican corporation with its principal and only place of business in the Dominican Republic. D.E. 37 at 1. WIPAD further argues the Agreement does not support a finding of specific personal jurisdiction. In support of its Motion, WIPAD cites to the Declaration of Roberto Roman, WIPAD's Operations Manager. D.E. 37 at 3; D.E. 20 Ex. A. Plaintiff responds that the Agreement is sufficient for this Court to find specific jurisdiction under Fla. Stat. § 48.193(1)(a)(9). D.E. 40 at 2. In the alternative, Plaintiff requests that she be permitted to engage in jurisdictional discovery. Id. at 16.
Because Plaintiff's response does not address general jurisdiction under the long-arm statute or jurisdiction under Federal Rule of Civil Procedure 4(k), the Court will not discuss those jurisdictional issues in its Order.
A. Florida's Long-Arm Statute
A defendant may be subject to Florida's long-arm statute through either specific jurisdiction and general jurisdiction. See, e.g. , Carmouche v. Carnival Corp. , 36 F. Supp. 3d 1335, 1340 (S.D. Fla. 2014) (citing Fla. Stat. § 48.193 (2016) ). Irrespective of the method, "Florida's long-arm statute is to be strictly construed." Carmouche , 36 F. Supp. 3d at 1340 (citing Sculptchair, Inc. v. Century Arts, Ltd. , 94 F.3d 623, 627 (11th Cir. 1996) ). "Since the extent of the long-arm statute is governed by Florida law, federal courts are required to construe it as would the Florida Supreme Court." Carmouche , 36 F. Supp. 3d at 1340 (quoting Cable/Home Comm. v. Network Prods. , 902 F.2d 829, 856 (11th Cir. 1990) ). Furthermore, "[i]n the absence of Florida Supreme Court precedent, federal courts must adhere to decisions of Florida's intermediate courts." Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1385 (S.D. Fla. 2014) (citing Meier ex rel. Meier v. Sun Int'l Hotels, Ltd. , 288 F.3d 1264, 1271 (11th Cir. 2002) ).
i. Specific Jurisdiction
In her Complaint, Plaintiff alleges that WIPAD is subject to specific jurisdiction pursuant to Fla. Stat. § 48.193(1)(a)(1), (1)(a)(4), and (1)(a)(9). D.E. 31 ¶¶ 8, 9. In her response, Plaintiff reaches the merits only of subsection (1)(a)(9). D.E. 40.
1. Fla. Stat. § 48.193(1)(a)(1)
Subsection (1)(a)(1) confers jurisdiction over an out-of-state defendant for claims arising against a defendant who is "operating, conducting, engaging in, or carrying on a business venture in this state or having an office or agency in this state." Plaintiff alleges WIPAD is subject to personal jurisdiction under subsection (1)(a)(1) because WIPAD "reached out to Florida-based cruise lines, insurers, cruise industry associates, and/or premium financing companies for purposes of operating, conducting, engaging in, or carrying on a business or business venture" in Florida. D.E. 31 ¶ 8. WIPAD argues that Plaintiff has failed to show a nexus between the alleged tort and WIPAD's alleged activities in Florida. D.E. 37 at 6–7. In his Declaration, Mr. Roman states that WIPAD has never maintained any "officers, directors, employees, and/or agents within the State of Florida or elsewhere in the United States" and "has never operated, conducted, engaged in or carried on a business venture, or had an office or agency in Florida or elsewhere in the United States." D.E. 20 Ex. A ¶¶ 17, 20.
WIPAD is not subject to personal jurisdiction under subsection (1)(a)(1). Plaintiff has failed to allege any nexus between the alleged tort and WIPAD's alleged activities. See Brown v. Carnival Corp. , 202 F. Supp. 3d 1332, 1343 (S.D. Fla. 2016) (finding that the court could not exercise personal jurisdiction over the excursion operator partly because the plaintiff did not establish a nexus between the tort and defendant's business activities); Bloom v. A.H. Pond Co., Inc. , 519 F. Supp. 1162, 1168 (S.D. Fla. 1981) ("It is clear that doing business in this state is not a sufficient basis, standing along, upon which to predicate long-arm jurisdiction. There must also be some nexus or connection between the business that is conducted in Florida and the cause of action alleged."). In addition, Plaintiff wholly failed to respond to WIPAD's arguments relating to this Court's exercise of specific jurisdiction under subsection (1)(a)(1) and did not offer any evidence to rebut Mr. Roman's Declaration. D.E. 40 at 2–7. For these reasons, the Court rejects Plaintiff's argument that this Court should find WIPAD is subject to specific jurisdiction under subsection (1)(a)(1).
2. Fla. Stat. § 48.193(1)(a)(4)
Subsection (1)(a)(4) allows for jurisdiction over a defendant who "contract[s] to insure a person, property, or risk located within this state at the time of contracting." Plaintiff alleges WIPAD is subject to personal jurisdiction under subsection (1)(a)(4) because WIPAD "contractually agree[d] to indemnify Florida-based cruise lines (entities mostly located in Miami and Ft. Lauderdale) for any harm resulting to cruise passengers, thereby insuring a ‘person property, or risk within this state.’ " D.E. 31 ¶ 8 (quoting Fla. Stat. § 48.193(1)(a)(4) ). Mr. Roman declared that WIPAD "has never agreed to indemnify Carnival within the meaning of Florida Statutes Section 48.193(1)(a)(4)." D.E. 20 Ex. A ¶ 24.
Once again, Plaintiff failed to respond to WIPAD's arguments and failed to rebut Mr. Roman's Declaration with evidence. D.E. 40. In addition, the Court agrees with the ruling in Lapidus v. NCL America, LLC , No. 12-cv-21183, 2013 WL 646185, at *4, 2013 U.S. Dist. LEXIS 23531, at *11 (S.D. Fla. Feb. 14, 2013), where Judge Seitz rejected a similar argument on the grounds that the plaintiff's negligence claims did not arise from an indemnity agreement. Similarly, in this case, Plaintiff's claims do not arise in contract; rather, Plaintiff's claims arise from an injury that occurred while she was on an off-shore excursion in the Dominican Republic. Accordingly, there is no basis upon which this Court is inclined to find that WIPAD is subject to specific jurisdiction in Florida under subsection (1)(a)(4).
3. Fla. Stat. § 48.193(1)(a)(9)
Recently, plaintiffs injured during excursions have tried a different approach when asking courts to find jurisdiction over excursion operators. See Evesson v. Carnival Corp. et al. , No. 17-cv-23474-MGC, D.E. 45 at 3 (S.D. Fla. June 20, 2018). Plaintiffs have argued, as Plaintiff does here, that excursion contractor agreements are sufficient for courts to find specific jurisdiction under subsection (1)(a)(9) because plaintiff-guests are third-party beneficiaries to such agreements.
Subsection (1)(a)(9) provides for specific jurisdiction where a defendant "enter[s] into a contract that complies with s. 685.102." Section 685.102 allows for personal jurisdiction over a foreign defendant where:
the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of the law of this state , in whole or in part, has been made pursuant to s. 685.101 and which contains a provision by which such person or other entity residing or located outside this state agrees to submit to the jurisdiction of the courts of this state.
Fla. Stat. § 685.102(1) (emphasis added). Section 685.101 in turn provides:
The parties to any contract ... 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 ... may, to the extent permitted under the United States Constitution, agree that the law of this state will govern such contract ... the effect thereof and their rights and duties thereunder, in whole or in part, whether or not such contract ... bears any relation to this state.
Fla. Stat. § 685.101(1) (emphasis added).
The Florida Fourth District Court of Appeal recently explained the effect of sections 685.101-.102 on the personal jurisdiction analysis: "When sections 685.101 and 685.102 are satisfied, personal jurisdiction may be exercised and the courts may dispense with the more traditional minimum contacts analysis. In other words, sections 685.101 and 685.102 allow parties to confer jurisdiction on the courts of Florida by contract alone if certain requirements are met." Corp. Creations Enters. LLC v. Brian R. Fons Attorney at Law P.C. , 225 So.3d 296, 301 (Fla. 4th DCA 2017) (internal citations omitted). The court further explained that, for a Florida court to exercise jurisdiction over a non-resident defendant pursuant to section 685.101 and 685.102, the contract must:
(1) Include a choice of law provision designating Florida law as the governing law, in whole or in part;
(2) Include a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida;
(3) Involve consideration of not less than $250,000 or relate to an obligation arising out of a transaction involving in the aggregate not less than $250,000;
(4) Not violate the United States Constitution; and
(5) Either bear a substantial or reasonable relation to Florida or have at least one of the parties be a resident of Florida or incorporated under the laws of Florida.
Id. (the "five factors").
Plaintiff contends that a contract between a cruise line and an excursion operator provides sufficient grounds for the Court to exercise jurisdiction in a personal injury action commenced by a non-signatory plaintiff. D.E. 40 at 5–7. Plaintiff further argues that the Agreement meets all requirements to satisfy specific jurisdiction under subsection (1)(a)(9). Id. ; D.E. 31 ¶ 9. WIPAD does not address the five factors, instead arguing that jurisdiction is improper for more fundamental reasons: (1) Plaintiff is not a signatory to the Agreement; (2) even if Plaintiff were a signatory, the claims do not arise under the Agreement; and (3) Plaintiff is not a third-party beneficiary to the Agreement, as she alleges in Count Nine. D.E. 37 at 7–14. Plaintiff responds that she is a third-party beneficiary given the Agreement's express references to "guests," the absence of a third-party beneficiary disclaimer clause, and passing references in the "representations and warranties" clause to "third parties." D.E. 40 at 11–14. This Court will not analyze the five factors and will instead turn its attention to the fundamental issues.
Two courts have found that an excursion contractor agreement between a cruise line and an excursion operator is sufficient to establish personal jurisdiction over the excursion operator in a tort action. In Steffan v. Carnival Corp. , No. 16-cv-25295-CMA, 2017 WL 4182203, at *4–7, 2017 U.S. Dist. LEXIS 161790, at *11–20 (S.D. Fla. Aug. 1, 2017), a case involving a contract virtually identical to the Agreement and claims of negligence and breach of third-party beneficiary contract, the court analyzed the five factors and found jurisdiction existed. The defendant had not filed a response to the jurisdictional issues. Id. at *1 n.1, 2017 U.S. Dist. LEXIS 161790, at *1 n.1. Presumably because the court in Steffan did not have the benefit of the defendant's briefing and relied wholly on the plaintiff's arguments, which were brought to the court's attention in a notice of supplemental authority filing, the court did not address whether non-signatories or third-party beneficiaries could rely on such a contract to haul a foreign defendant into court. The court in Lienemann v. Cruise Ship Excursions, Inc. , 349 F. Supp. 3d 1269 (S.D. Fla. 2018) relied almost entirely on Steffan in finding that jurisdiction existed due to the excursion contractor agreement. There, defendants Carnival and Cruise Ship Excursions, Inc. ("CSE") entered into an excursion contractor agreement governing catamaran excursion tickets. Id. at 1271. Plaintiff sued for negligence and breach of third-party beneficiary contract for injuries resulting from the excursion. Id. Upon analyzing the five factors, the court denied CSE's motion to dismiss for lack of personal jurisdiction and found that jurisdiction existed under subsection (1)(a)(9). Id. at 1274 (citing Steffan , 2017 WL 4182203, at *4–7, 2017 U.S. Dist. LEXIS 161790, at *11–20 ). The court also rejected the excursion operator's argument that the plaintiff could not enforce the consent to jurisdiction clause because she was not a party to the agreement. Id. at 1275. The court found that the plaintiff was a third-party beneficiary to the agreement because "the agreement expressly intended to benefit Carnival's guests." Id. In so doing, the court relied on the Agreement's absence of an express disclaimer of third-party beneficiaries; references to the word "guests"; and incidental use of the word "third party." Id. The Court will not follow Steffan and Lienemann .
The court did assert, however, that "[b]ecause Plaintiff has shown the Agreement between Chukka [the excursion operator] and Carnival expresses the intent to benefit Carnival's guests, and Defendant Chukka has not contested those allegations , the undersigned concludes Plaintiff may enforce the consent to jurisdiction clause in this action." Steffan , 2017 WL 4182203 at *7, 2017 U.S. Dist. LEXIS 161790 at *21 (emphasis added).
Moreover, soon after the order denying the defendant's motion to dismiss for lack of personal jurisdiction was issued, the defendant moved for reconsideration, which was denied as moot when the case settled shortly thereafter. No. 16-cv-25295-CMA D.E. 92, 101.
The Court agrees with Judge Cooke in Evesson v. Carnival Corp. et al. , No. 17-cv-23474-MGC, D.E. 41, 45 (S.D. Fla. June 20, 2018) (hearing on motion to dismiss for lack of personal jurisdiction): Plaintiff's use of subsection (1)(a)(9) through a third-party beneficiary claim is an attempted "back door way through the contract" to establish jurisdiction over a foreign defendant in a personal injury case. D.E. 45 at 3. The material provisions of the agreement in Evesson are identical to those here. See id. D.E. 15-2 ¶¶ 12, 14(c). Judge Cooke found that the plaintiff was not part of the agreement between the excursion operator and the cruise line and therefore could not enforce the consent to jurisdiction clause, stating:
What I think [the] contract does is define the relationship between the operator and the cruise line and that the passenger is not a third-party beneficiary of that contract. So I don't find that the clause confers any jurisdiction such that it would be that [the excursion operator] has waived its right to contest jurisdiction in this litigation or ... that plaintiff can enforce the contract against it as a third-party beneficiary. Most courts have found that this clause is not so broad as to constitute a blanket waiver, and I agree.
D.E. 45 at 32–33. Indeed, courts have held that excursion contractor agreements similar to the Agreement here do not confer third-party beneficiary status upon plaintiff-guests. See, e.g. , Thompson v. Carnival Corp. , 174 F. Supp. 3d 1327, 1344 (S.D. Fla. 2016) ; Aronson , 30 F. Supp. 3d 1379 at 1398.
Plaintiff is not a third-party beneficiary to the Agreement. "For a contract to intend to benefit a third party, such intent must be specific and must be clearly expressed in the contract." Heller v. Carnival Corp. , 191 F. Supp. 3d 1352, 1365 (S.D. Fla. 2016) (internal citations omitted). "The third parties do not need to be specifically named in the contract to qualify as intended beneficiaries, as long as the contract refers to a well-defined class of readily identifiable persons that it intends to benefit. However, the parties' intent to benefit the third party must be specific and must be clearly expressed in the contract in order to endow the third party beneficiary with a legally enforceable right." Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1398 (S.D. Fla. 2014) (internal citations and quotation marks omitted). It is not sufficient for a third party to have an "incidental or consequential benefit." Id. (internal quotation marks omitted).
The Court finds Plaintiff's arguments, which mirror the court's reasoning in Lienemann , meritless. First, third-party beneficiary status is not created by the absence of an express disclaimer to the contrary. D.E. 40 at 13. Further, Mr. Roman declared that the Agreement "imposed no obligation intended to benefit third parties, including but not limited to Carnival passengers[, and] contain[ed] no express or implied provisions establishing an intent to primarily or directly benefit third parties, including but not limited to Carnival passengers." D.E. 20-1 ¶ 32. Plaintiff did not offer evidence in rebuttal.
Second, repeated use of the word "guests" in the Agreement does not refer to a clearly expressed "well-defined class of readily identifiable persons that [the Agreement] intends to benefit," that being passengers such as Plaintiff. Aronson , 30 F. Supp. 3d at 1398 ; D.E. 40 at 11–12. Notably, although "guests" appear throughout the Agreement, including the indemnity clause that expressly contemplates litigation with "guests," the consent to jurisdiction clause does not mention "guests." D.E. 40-1 ¶ 15(c). The Court agrees with Evesson : the Agreement defines the relationship between WIPAD and Carnival and was not created with the clear intent of benefitting third parties. Third, Plaintiff points to the representations and warranties clause's language to support her assertion that the Agreement created third-party rights and obligations to guests. D.E. 40 at 13. The clause reads: "Each party represents and warrants to the other party that ... its execution and performance under this Agreement will not result in a breach of any obligation to any third party or infringe or otherwise violate any third party's rights ." D.E. 40-1 ¶ 13 (emphasis added). Incidental use of the words "third party rights" does not itself evince an intent of the signatories to contract for the benefit of third parties. Also absent from this clause is the word "guests." Nor does the clause "specific[ally]" and "clearly express[ ] language ... endow[ing] the third party beneficiary with a legally enforceable right." Aronson , 30 F. Supp. 3d at 1398 (emphasis added). The Defendants did not enter into the Agreement with the intent of benefitting third parties.
For example, the Agreement refers to guests in the following ways: (1) "Carnival will provide the following vessels for the sale of Shore Excursions to its Guests "; (2) "Operator is ... willing to provide the Shore Excursions to Guests on the Vessels"; (3) "Carnival agrees to sell tickets for Shore Excursions to Vessel Guests "; (4) "Carnival shall collect all proceeds directly from its Guests "; (5) "Operator will arrange and provide the Shore Excursions to Guests "; (6) "Operator is responsible for procuring and maintaining liability insurance ... to Guests "; and (7) "Operator agrees to indemnify ... and defend Carnival ... and hold them harmless from and against any and all losses, claims, liabilities, causes of actions ... which may arise or be claimed against Carnival related to, in connection with, as a consequence of or arising from the business or operations of the Operator and/or services provided to Carnival and its Guests ." D.E. 40-1 ¶¶ 1, 2, 4, 5, 6, 10, 11 (emphasis added).
Moreover, while Plaintiff does assert a third-party beneficiary claim, her cause of action does not arise out of the Agreement. See Wolf v. Celebrity Cruises, Inc. , 683 F. App'x 786, 793 (11th Cir. 2017) (holding that the court was without jurisdiction over the excursion operator in a personal injury case that asserted a third-party beneficiary claim "[b]ecause the alleged tortious activity occurred outside of Florida [and] there is no connexity between the Agreement and Mr. Wolf's cause of action"). Plaintiff did not reply to this argument. See D.E. 40; D.E. 42 at 4. Plaintiff also alleges the Defendants breached the Agreement by failing to "offer reasonably safe excursions," an argument that is routinely rejected by courts in this District. See, e.g. , Aronson , 30 F. Supp. 3d 1379 at 1398 ("To the extent that Plaintiff alleges that Wrave and Carnival contracted to ensure the safety of Celebrity's passengers, this is far too generalized to support a third-party beneficiary claim."); Lapidus v. NCL Am. LLC , 924 F. Supp. 2d 1352, 1361 (S.D. Fla. 2013). In sum, this Court will not allow Plaintiff to enter through the "back door" and use the Agreement's consent to jurisdiction clause via a meritless third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal injury case.
The Court also notes that sections 685.101 and 685.102 "must be strictly construed and any doubts about the applicability of the statute [must be] resolved in favor of the defendant and against a conclusion that personal jurisdiction exists." Schuster v. Carnival Corp. No. 10-cv-21879-CAM, 2011 WL 541580, at *3, 2011 LEXIS 126455, at *7–8 (S.D. Fla. Feb. 8, 2011) (internal citations and quotation marks omitted). Sections 685.101 and 685.102 do not address third-party beneficiaries and only contemplate enforcement of a contract by a party to a contract against another party. Fla. Stat. § 685.101(1) (The parties to any contract ....). As such, WIPAD asserts, "This likely explains why since their enactment in 1989, no court prior to Steffan had applied the enforcement statutes to a suit brought by a non-signatory plaintiff" in a cruise ship-excursion operator case. D.E. 42 at 2.
B. Due Process, Minimum Contacts
Because the Court finds that jurisdiction is not appropriate under either Fla. Stat. § 48.193(1)(a), "a lengthy due process inquiry is not necessary." Carmouche v. Carnival Corp. , 36 F. Supp. 3d 1335, 1344 (S.D. Fla. 2014). The second prong of a due process inquiry analyzes whether there are "sufficient minimum contacts ... between the defendants and the forum state so as to satisfy ‘traditional notions of fair play and substantial justice." International Shoe v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). However, because the Due Process Clause "imposes a more restrictive requirement than does Florida's Long-Arm Statute," a finding a defendant is not subject to jurisdiction under Florida law means that jurisdiction is also inappropriate under the Due Process Clause. Melgarejo v. Pycsa Pan., S.A. , 537 F. App'x 852, 860 (11th Cir. 2013).
C. Jurisdictional Discovery
Plaintiff did not submit any evidence or affidavit to support the jurisdictional allegations contained within her Complaint and response. Yet, Plaintiff insists in a conclusory manner that she is entitled to jurisdictional discovery because case law "makes clear that a right to jurisdictional discovery exists." D.E. 40 at 16. The Court does not find it necessary to provide Plaintiff with an opportunity to engage in jurisdictional discovery because there is "no genuine dispute on a material jurisdictional fact to warrant jurisdictional discovery." Peruyero v. Airbus S.A.S. , 83 F. Supp. 3d 1283, 1290 (S.D. Fla. 2014) ; see also Yepez v. Regent Seven Seas Cruises , No. 10-23920-CIV, 2011 U.S. Dist. LEXIS 86687, 2011 WL 3439943, at *1 (S.D. Fla. Aug. 5, 2011) ("[T]he failure of a plaintiff to investigate jurisdictional issues prior to filing suit does not give rise to a genuine jurisdictional dispute.").
IV. Conclusion
For the reasons stated herein, it is hereby ORDERED AND ADJUDGED that WIPAD's Motion to Dismiss Plaintiff's Second Amended Complaint for Lack of Personal Jurisdiction (D.E. 37) is GRANTED. It is further
ORDERED AND ADJUDGED that Count Six of the Second Amended Complaint is DISMISSED. It is further
ORDERED AND ADJUDGED that the Clerk of Court shall TERMINATE Defendant WIPAD from this case. It is further
ORDERED AND ADJUDGED that the hearing scheduled for September 20, 2019 is VACATED.
DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of September, 2019.