Opinion
CASE NO. 20-20616-CIV-ALTONAGA/Goodman
2020-07-27
Colleen JOHNSON, et al., Plaintiffs, v. ROYAL CARIBBEAN CRUISES LTD., et al., Defendants.
Robert L. Gardana, Philip Dixon Parrish, Philip D. Parrish PA, Miami, FL, for Plaintiffs. Barry L. Davis, Juan Pablo Garrido, Clyde & Co. US LLP, Joseph J. Goldberg, Dennis John Egitto, Jr., Samuel E. Basch, Cole, Scott & Kissane P.A., Miami, FL, for Defendants.
Robert L. Gardana, Philip Dixon Parrish, Philip D. Parrish PA, Miami, FL, for Plaintiffs.
Barry L. Davis, Juan Pablo Garrido, Clyde & Co. US LLP, Joseph J. Goldberg, Dennis John Egitto, Jr., Samuel E. Basch, Cole, Scott & Kissane P.A., Miami, FL, for Defendants.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court on Defendant, Cooperativa De Servicios De Excursiones Turisticas De Puerto Rico's ("Tour Coop[’s]") Motion to Dismiss for Lack of Personal Jurisdiction [ECF No. 56], filed on June 8, 2020. Plaintiffs, Colleen Johnson and Mackenzie Lovig, filed a Response [ECF No. 59] on June 26, 2020; to which Tour Coop filed a Reply [ECF No. 60] on July 6, 2020. The Court has carefully considered the Second Amended Complaint[s] ("Amended Complaints") [ECF Nos. 54, 55], the parties’ written submissions, and applicable law. For the following reasons, the Motion is granted.
As part of the case-consolidation process, Plaintiffs, Colleen Johnson and Mackenzie Lovig, each filed identical Second Amended Complaints. Thus, when referencing "Amended Complaints[,]" the Court cites to the Second Amended Complaint at docket entry 54.
I. BACKGROUND
This action arises from injuries sustained by Plaintiffs while participating in a shoreside cruise excursion. (See generally Am. Compls.). Plaintiffs are citizens and residents of Minnesota. (See id. ¶ 3). Plaintiffs were fare paying passengers aboard a vessel owned and operated by Defendant, Royal Caribbean Cruises, Ltd. ("Royal Caribbean"). (See id. ¶¶ 36, 39). Royal Caribbean is a foreign corporation with its principal place of business in Miami, Florida. (See id. ¶ 4). Tour Coop is a foreign corporation with its principal place of business in San Juan, Puerto Rico. (See id. ¶ 5).
The Incident . During the cruise, Royal Caribbean offered, sold, marketed, and managed shore excursions, including "El Yunque Rainforest Drive-SJA7[ ]" (the "Excursion") in San Juan, Puerto Rico. (Id. ¶¶ 40–42 (alteration added; quotation marks omitted)). On February 14, 2019, the vessel arrived at the Port of San Juan. (See id. ¶ 42). Royal Caribbean's tour details indicated the Excursion commenced at 7:30 a.m. and ended at 12:00 p.m. (See id. ¶ 43). Plaintiffs departed the ship to board Tour Coop's bus to take them to the El Yunque National Rainforest. (See id. ¶¶ 44–45).
On the trip to the Rainforest, Tour Coop's bus passed through an intersection and stopped at a local souvenir shop. (See id. ¶ 46). The Excursion's participants disembarked and shopped at the souvenir store. (See id. ¶ 47). The driver informed the Excursion's participants they had spent too much time at the shop and needed to hurry to keep on schedule; the Excursion continued once all the passengers boarded the bus. (See id. ¶¶ 47–48).
Sometime thereafter, Tour Coop's bus entered an intersection to execute a left-hand turn across two west-bound lanes. (See id. ¶ 48). Tour Coop's bus failed to yield the right of way to an oncoming vehicle, causing that vehicle to strike the right rear portion of the bus where Plaintiffs were seated. (See id. ¶ 49). Plaintiffs were "thrown [ ] from [their] seat[s] like crash dummies, [ ] resulting in grievous injuries." (Id. (alterations added)). The force of the accident blew out multiple windows, shattered the glass, and severely injured Plaintiffs. (See id. ¶ 50). The crash location is designated as a "hot-intersection" and "hot-corridor" based upon the high number of motor vehicle crashes that occur there. (Id. ¶¶ 54, 56 (quotation marks omitted); see also id. ¶¶ 51–53, 55).
The Tour Operator Agreement . Royal Caribbean and Tour Coop are parties to a written contract entitled Tour Operator Agreement (the "Agreement"). (See Am. Compls., Ex. B, Agreement [ECF No. 54-2] ). The Agreement's Governing Law; Jurisdiction; and Attorneys’ Fees’ provision provides, in part:
The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Florida.
[Tour Coop] acknowledges that pursuant to its agreement with the Passengers, all disputes and matters whatsoever arising under, in connection with or incident to the cruise ticket agreement between the Passenger and [Royal Caribbean] shall be litigated, if at all, in and before a court located in Miami, Florida, U.S.A., [or such other jurisdiction as may be specified in the agreement with the Passenger] to the exclusion of the courts of any other state, territory or country. [Tour Coop] shall take no steps that contradict these arrangements.
[Tour Coop] hereby irrevocably consents to the exclusive jurisdiction of any State or Federal court located in Miami/Dade County in the State of Florida in the event any action is brought by either Party [— Tour Coop or Royal Caribbean —] pursuant to this Agreement. [Tour Coop] hereby waives any venue or other objection that it may have to any such action or proceeding being brought in any State or Federal court located in Miami/Dade County.
(Id. 3 (third brackets in original; other alterations added)). A separate provision — titled "Third Party Beneficiary" — states the "Agreement shall not be deemed to provide third parties with any remedy, claim, right or action or other right." (Id. 5).
The Court relies on the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
Plaintiffs’ Jurisdictional Allegations . Plaintiffs make the following allegations pertinent to the exercise of personal jurisdiction over Tour Coop. Plaintiffs allege personal jurisdiction is proper because the Agreement (1) contains a choice-of-law clause designating Florida law as the governing law; (2) contains a provision whereby Tour Coop agrees to submit to the exclusive jurisdiction of the courts of Florida; (3) involves consideration not less than $250,000 or relates to an obligation arising out of a transaction involving in the aggregate not less than $250,000; (4) does not violate the U.S. Constitution; and (5) has at least one party that is a resident of Florida or incorporated under the laws of Florida. (See Am. Compls. ¶ 10; see also id. ¶¶ 11–32). According to Plaintiffs, the Court "has specific jurisdiction under Florida Statute[s] [section] 48.193(1)(a)(9) over [Tour Coop] under [ Florida Statutes sections] 685.101 – 102, as [Tour Coop] and [Royal Caribbean] entered into [the Agreement] dated December 11, 2017, whereby ... [Royal Caribbean] agreed to sell various land tour excursion tickets to passengers and [Tour Coop] agreed to operate such excursions for [Royal Caribbean] (either directly or through its subsidiaries)[.]" (Id. ¶ 15 (alterations added; footnote call number omitted); see also id. ¶¶ 10–14).
The Amended Complaints . Plaintiffs bring two claims for relief against Tour Coop: Negligence (Count IV) (see id. ¶¶ 135–40); and Third-Party Beneficiary Breach of Contract (Count V) (see id. ¶¶ 141–63).
Tour Coop's Motion and Additional Facts . Tour Coop moves for dismissal of the Amended Complaints for lack of personal jurisdiction, contending a court in Florida does not have general jurisdiction over it, and that what limited contact it may have with this forum by virtue of the Agreement is not sufficiently related to Plaintiffs’ claims to confer specific jurisdiction. (See generally Mot.; Reply). Tour Coop submits an affidavit focusing on its lack of contacts with Florida and supplying additional facts for the Court to consider in determining whether specific or general jurisdiction exists over Tour Coop. (See generally Mot., Ex. B, Aff. Litza Boyer [ECF No. 56-2] ).
Tour Coop is a cooperative formed under the laws of Puerto Rico and maintains its principal place of business in Carolina, Puerto Rico. (See id. ¶ 4). Boyer was authorized to execute, and did execute, the Agreement between Royal Caribbean and Tour Coop. (See id. ¶ 5). As expressly stated in the Agreement, Tour Coop (1) never intended to enter a contract with Royal Caribbean to provide protection or benefit to any third party or passengers; and (2) entered an independent contractor relationship with Royal Caribbean. (See id. ¶¶ 6–8).
Tour Coop has never maintained a bank account, a post office box or mailing address, or a phone number in Florida. (See id. ¶¶ 9–10, 13–14). Tour Coop has never paid taxes to Florida. (See id. ¶ 11). It has never had a place of business; sold, leased, or transferred any property to any person or entity; or owned any assets in Florida. (See id. ¶¶ 9, 15–16, 20). Tour Coop has never been incorporated, licensed, qualified, registered, or authorized to do business in Florida; accordingly, it has never employed anyone in Florida. (See id. ¶¶ 17–18).
Tour Coop has neither conducted nor engaged in a business venture in Florida; nor has it entered into a contract requiring performance in Florida. (See id. ¶¶ 19, 22). Tour Coop has never been involved with introducing any products, materials, or services into the stream of commerce in Florida; nor has it caused injury to persons or property located in Florida. (See id. ¶¶ 21, 23). Plaintiffs did not serve Tour Coop in Florida. (See id. ¶ 24).
II. STANDARD
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a claim against it by asserting the defense of lack of personal jurisdiction. In the case of a non-resident defendant, a federal court may properly exercise personal jurisdiction only if the requirements of (1) the relevant state long-arm statute; and (2) the Due Process Clause of the Fourteenth Amendment to the United States Constitution are both satisfied. See Posner v. Essex Ins. Co., Ltd. , 178 F.3d 1209, 1214 (11th Cir. 1999) (citation omitted).
"A plaintiff seeking to obtain jurisdiction over a nonresident defendant initially need only allege sufficient facts to make out a prima face case of jurisdiction." Id. at 1214 (citing Electro Eng'g Prods. Co. v. Lewis , 352 So. 2d 862, 864 (Fla. 1977) ). "The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits." Peruyero v. Airbus S.A.S. , 83 F. Supp. 3d 1283, 1286 (S.D. Fla. 2014) (citing Consol. Dev. Corp. v. Sherritt, Inc. , 216 F.3d 1286, 1291 (11th Cir. 2000) ).
If a plaintiff pleads sufficient facts to support the exercise of personal jurisdiction, the burden shifts to the defendant to make a prima facie showing of the inapplicability of the state's long-arm statute. See Future Tech. Today, Inc. v. OSF Healthcare Sys. , 218 F.3d 1247, 1249 (11th Cir. 2000) (citation omitted). To the extent the defendant's proffered evidence does not contradict the plaintiff's jurisdictional allegations, the plaintiff's allegations must be accepted as true. See Posner , 178 F.3d at 1215 (citing Madara v. Hall , 916 F.2d 1510, 1514 (11th Cir. 1990) ). But to the extent the defendant does contradict the plaintiff's allegations, the burden shifts back to the plaintiff, this time requiring the plaintiff to prove — not merely allege — jurisdiction by affidavits, testimony, or other documents. See id. at 1214–15 ; Future Tech. , 218 F.3d at 1249 (citation omitted).
A party cannot meet its evidentiary burden by submitting affidavits asserting only "conclusory assertions of ultimate fact." Posner , 178 F.3d at 1215. Rather, the affidavits must "set forth specific factual declarations within the affiant's personal knowledge." Id. "The district court must construe all reasonable inferences in the light most favorable to the plaintiff when dealing with conflicting evidence." Peruyero , 83 F. Supp. 3d at 1287 (citing PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V. , 598 F.3d 802, 810 (11th Cir. 2010) ; other citation omitted).
"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.’ " Cable/Home Commc'n Corp. v. Network Prods., Inc. , 902 F.2d 829, 856 (11th Cir. 1990) (quoting Oriental Imports & Exports, Inc. v. Maduro & Curiel's Bank, N.V. , 701 F.2d 889, 890–91 (11th Cir. 1983) ). "Absent some indication that the Florida Supreme Court would hold otherwise, [federal courts] are bound to adhere to decisions of [Florida's] intermediate courts." Sculptchair, Inc. v. Century Arts, Ltd. , 94 F.3d 623, 627 (11th Cir. 1996) (alterations added; citation omitted). Florida courts "strictly construe the long-arm statute in favor of the nonresident defendant." Abdo v. Abdo , 263 So. 3d 141, 145 (Fla. 2d DCA 2018) (citations omitted).
III. ANALYSIS
Tour Coop moves to dismiss the claims against it under Rule 12(b)(2), stating the Court lacks jurisdiction over it. (See generally Mot.; Reply). A defendant is subject to specific personal jurisdiction under Florida's long-arm statute if the plaintiff's claim "aris[es] from" a defendant's specific forum-related contacts. Fla. Stat. § 48.193(1)(a) (alteration added). As noted, if a plaintiff pleads enough facts to support the exercise of personal jurisdiction, the burden shifts to the defendant to show the inapplicability of the state's long-arm statute. See Future Tech. , 218 F.3d at 1249 (citation omitted). "If the defendant sustains this burden, the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint." Id. (citation omitted).
The parties agree there is no general personal jurisdiction over Tour Coop in Florida. (See Mot. 6–8; Resp. 3–4).
Plaintiffs allege Tour Coop consented to jurisdiction in Florida when it executed the Agreement with Royal Caribbean. (See Am. Compls. ¶¶ 10–32). Section 48.193(1)(a)(9), Florida Statutes, grants parties the right to confer personal jurisdiction by contract, but the contract must comply with sections 685.101 and 685.102 of the Florida Statutes. See Fla. Stat. § 48.193(1)(a)(9) ; see also Corp. Creations Enters. LLC v. Brian R. Fons Attorney at Law P.C. , 225 So. 3d 296, 301 (Fla. 4th DCA 2017) ("[S]ections 685.101 and 685.102 allow parties to confer jurisdiction on the courts of Florida by contract alone if certain requirements are met." (alteration added)).
Section 685.102, titled Jurisdiction, states:
any person may, to the extent permitted under the United States Constitution, maintain in this state an action or proceeding against any person or other entity residing or located outside this state, if 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 [ section] 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) (alteration added). Section 685.101 in turn provides:
[t]he 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, including a transaction otherwise covered by [section] 671.105(1), 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) (alterations added).
In other words, to satisfy Florida's statutory requirements, a contract must: (1) "include a choice of law provision designating Florida law as the governing law[ ]"; (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[ ]"; (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 its laws." Hamilton v. Hamilton , 142 So. 3d 969, 971–72 (Fla. 4th DCA 2014) (alterations added; citation omitted). "If these five requirements are met, then personal jurisdiction may be exercised and the courts may dispense with the more traditional minimum contacts analysis." Interim Healthcare, Inc. v. Interim Healthcare of Se. La., Inc. , No. 19-cv-62412, 2020 WL 3078531, at *14 (S.D. Fla. June 10, 2020) (quotation marks and citations omitted); see also Corp. Creations Enters. LLC , 225 So. 3d at 301 ("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." (citation omitted)).
Tour Coop does not address whether Plaintiffs satisfy the requirements of section 685.102. (See generally Mot.). Rather, Tour Coop contends the Court cannot "assert specific personal conferral jurisdiction over [it]" because Plaintiffs are neither "parties to" nor "third-party beneficiaries of" the Agreement. (Id. 11 (alteration added); see also id. 8–12). According to Tour Coop, the Agreement's "consent to jurisdiction clause ... cannot be enforced by a non-party to the [A]greement, particularly where the [A]greement disclaims third[-]party benefits." (Reply 9 (alterations added)).
According to Plaintiffs, Tour Coop "knowingly conferred personal jurisdiction upon Florida courts ... due to a conferral of jurisdiction clause contained within the [Agreement] executed between [Tour Coop] and [Royal Caribbean.]" (Resp. 5 (alterations added)). In Plaintiffs’ view, the "plain language" of section 685.102(1) "establishes ... non-signator[ies] to [the Agreement] ... may avail [themselves] of [ section] 685.101 so long as the lawsuit arises out of or relates to [the Agreement.]" (Id. 7 (alterations added)). Plaintiffs insist the Agreement between Royal Caribbean and Tour Coop provides a basis for the Court to exercise jurisdiction in this case initiated by non-signatories or third-party beneficiaries to the Agreement. (See id. 6–19).
Quite simply, the Court agrees with the district court decisions in this Circuit holding that a plaintiff may not "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[,]" especially where, as here, the Agreement includes an express disclaimer of the existence of third-party beneficiaries. Serra-Cruz v. Carnival Corp. , 400 F. Supp. 3d 1354, 1363 (S.D. Fla. 2019) (alteration added); see also Kreyer v. Carnival Corp. , No. 19-cv-20398, Order on Mot. to Dismiss [ECF No. 36] (S.D. Fla. Dec. 19, 2019); Evesson v. Carnival Corp. , No. 17-cv-23474, Order on Mot. to Dismiss [ECF No. 41] (S.D. Fla. June 20, 2018). In Serra-Cruz , the plaintiff brought claims against Carnival Corporation and an excursion operator based in the Dominican Republic following an ATV accident. See 400 F. Supp. 3d at 1356. The shore-excursion agreement between Carnival Corporation and the shore-excursion entity contained a "consent to jurisdiction" provision by which the excursion operator consented to personal jurisdiction "in the event of any lawsuit to which [Carnival] [was] a party and which [was] related to, in connection with, arising from or involving the [s]hore [e]xcursions or terms in this [a]greement." Id. (alterations added; quotation marks omitted). The plaintiff argued the contract between the cruise line and an excursion operator provided a sufficient ground for the court to exercise jurisdiction in a personal injury action initiated by a non-signatory plaintiff. See id. at 1360. The court disagreed, refusing to allow the plaintiff "to enter through the ‘back door’ and use the [a]greement's consent to jurisdiction clause via a meritless third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal injury case." Id. at 1363 (alteration added).
The Court is aware it previously found a shore-excursion contract between a cruise line and an excursion operator was enough to establish personal jurisdiction over the defendant-excursion operator. See Steffan v. Carnival Corp. , No. 16-25295-Civ, 2017 WL 4182203 (S.D. Fla. Aug. 1, 2017). In Steffan , the undersigned held the plaintiff could enforce a consent-of-jurisdiction clause for two reasons. See id. at *7. First, the defendant-excursion operator neither "contested" nor "challenged" the plaintiff's third-party-beneficiary-claim allegations. Id. Second, the shore-excursion contract's conferral-of-jurisdiction clause included "broad language" by which the defendant-excursion operator consented to jurisdiction in the event any lawsuit was brought against the defendant-cruise line. Id. It was only because the plaintiff "ha[d] shown the [a]greement ... expresse[d] the intent to benefit [the defendant-cruise line's] guests, and [the defendant-excursion operator] ha[d] not contested those allegations, the undersigned conclude[d] [the p]laintiff may enforce the consent to jurisdiction clause in th[e] action." Id. (alterations added).
The circumstances in Steffan are not analogous to those presented here. As Tour Coop aptly observes: (1) the Steffan consent-of-jurisdiction clause "is quite different from and contrary to the more restrictive language in [the Agreement]"; and (2) the Agreement "by its terms expressly excludes any third-party claims[.]" (Reply 6–7 (alterations added)).
The Serra-Cruz court relied on Evesson. See Serra-Cruz , 400 F. Supp. 3d at 1361 (citing Evesson , Tr. of Hr'g on Mot. to Dismiss [ECF No. 45] (S.D. Fla. July 19, 2018)). In Evesson , the court ruled the plaintiff was neither a party to the shore-excursion contract nor a third-party beneficiary of that contract, and thus could not enforce the jurisdictional clause. (See Tr. of Hr'g on Mot. to Dismiss 32:11–33:7). In so doing, the court explained the shore-excursion contract simply defines the relationship between the operator and the cruise line, concluding the conferral-of-jurisdiction clause did not constitute a blanket personal jurisdictional waiver. (See id. ). The court granted the shore-excursion company's motion to dismiss on the basis it could not exercise specific jurisdiction over the company. (See id. , Order on Mot. to Dismiss 1; see also Kreyer , Order on Mot. to Dismiss 5 (granting shore-excursion company's motion to dismiss "[f]or the same reasons stated in the [c]ourt's order in Serra-Cruz and on the record during a hearing on the motion to dismiss in Evesson [ ]" (alterations added))).
To avoid these decisions, Plaintiffs maintain section 685.102 ’s "language does not limit the conferral of jurisdiction to actions brought by a signatory/party to the contract[ ]" or by "an intended third-party beneficiary under contract law." (Resp. 7 (alteration added)). Plaintiffs are mistaken. On this point, E & H Cruises, Ltd. v. Baker , 88 So. 3d 291 (Fla. 3d DCA 2012), is instructive.
Plaintiffs cite Elandia International, Inc. v. Ah Koy , 690 F. Supp. 2d 1317 (S.D. Fla. 2010), for the proposition a non-signatory plaintiff may pursue claims against a signatory defendant so long as there is a related contract that contains a forum selection clause. (See Resp. 8). Elandia does not stand for that proposition. As Tour Coop correctly notes (see Reply 6), the Elandia -plaintiff was a signatory to the stock purchase agreements that contained the forum selection provision the plaintiff sought to enforce. See Elandia Int'l, Inc. , No. 09-cv-20588, Am. Compl. [ECF No. 4] ¶¶ 14–15 (S.D. Fla. Mar. 17, 2009). Plaintiffs’ invocation of Elandia fails to persuade.
In E & H Cruises, Ltd. , the plaintiff-cruise passenger sued Royal Caribbean and an excursion operator after she sustained injuries participating in a mock-pirate-ship excursion. See id. at 293. The plaintiff attempted to use the tour operating agreement between Royal Caribbean and the excursion operator as a basis for personal jurisdiction. See id. at 296. Specifically, the plaintiff contended "because of the forum selection clause in the [t]our [o]perator [a]greement, jurisdiction exist[ed] pursuant to sections 685.101–102, Florida Statutes[.]" Id. at 296 n.1 (alterations added). Florida's Third District Court of Appeal disagreed, explaining "the plaintiff was not a party to, nor could she sue under, the [t]our [o]perator [a]greement, and therefore the forum selection clause c[ould not] serve as a basis for personal jurisdiction with respect to a claim by a specifically excluded third party." Id. (alterations added); see also Jetbroadband WV, LLC v. MasTec N. Am., Inc. , 13 So. 3d 159, 160 (Fla. 3d DCA 2009) (holding parties to a commercial contract can confer personal jurisdiction on a Florida court under sections 685.101– 102, Florida Statutes ); Interim Healthcare, Inc. , 2020 WL 3078531, at *11–12 (addressing first whether the defendants were parties to or assumed any obligations under the agreement and then proceeding to the merits of the defendants’ personal jurisdiction arguments); Bonck v. Carnival Corp. , No. 18-23991-Civ, 2019 WL 4863463, at *5 (S.D. Fla. June 19, 2019), report and recommendation adopted , 2019 WL 4291346 (S.D. Fla. Sept. 11, 2019) (noting a plaintiff who adequately alleges third-party beneficiary status can rely upon a conferral of jurisdiction clause (citation omitted)).
Undeterred, Plaintiffs insist they are intended third-party beneficiaries of the Agreement between Tour Coop and Royal Caribbean. (See Resp. 19). In Plaintiffs’ view, because the Agreement "mentions ‘Passenger’ a total of 24 times in 4 pages[,]" the Agreement "refers to a well defined class of readily identifiable persons [ ] it intends to benefit." (Id. (alterations added; quotation marks omitted)). Again, the Court disagrees.
Courts in this Circuit have addressed largely identical allegations and rejected Plaintiffs’ third-party beneficiary claims, especially where, as here, the Agreement includes an express disclaimer of third-party benefits. See Wolf v. Celebrity Cruises, Inc. , 683 F. App'x 786, 798–99 (11th Cir. 2017) (affirming district court's grant of summary judgment as to plaintiff's third-party beneficiary contract claim because the tour operating agreement expressly disclaimed any intent to benefit third parties); Sanlu Zhang v. Royal Caribbean Cruises, Ltd. , No. 19-20773-Civ, 2019 WL 8895223, at *6–7 (S.D. Fla. Nov. 15, 2019) (dismissing the plaintiff's third-party beneficiary claim because cruise-line passengers received merely incidental benefits of the contract between Royal Caribbean and the excursion operator); Zapata v. Royal Caribbean Cruises, Ltd. , No. 12-21897-Civ, 2013 WL 1296298, at *6–7 (S.D. Fla. Mar. 27, 2013) (dismissing the plaintiff's third-party beneficiary claim where the tour operating agreement expressly disclaimed any intent to benefit the plaintiff); Gayou v. Celebrity Cruises, Inc. , No. 11-23359-Civ, 2012 WL 2049431, at *11–12 (S.D. Fla. June 5, 2012) (dismissing the plaintiff's third-party beneficiary claim because the excursion operating agreement did not expressly intend to benefit the plaintiff; noting, in fact, the agreement expressly disclaimed any intent to provide third parties with any remedy, claim, right of action or other right).
Plaintiffs do not address the express disclaimer in their Response, save for one, brief quotation in a footnote. (See Resp. 3 n.1); see also A.L. Williams & Assocs., Inc. v. McMahon , 697 F. Supp. 488, 494 (N.D. Ga. 1988) (explaining "a party cannot have it both ways; it cannot rely on the contract when it works to its advantage and then repute it when it works to its disadvantage.")
In short, Plaintiffs are neither parties to nor third-party beneficiaries of the Agreement, and thus cannot avail themselves to the Agreement's consent-to-jurisdiction provision. Plaintiffs’ claims against Tour Coop are dismissed without prejudice for lack of jurisdiction. IV. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendant, Cooperativa De Servicios De Excursiones Turisticas De Puerto Rico's Motion to Dismiss for Lack of Personal Jurisdiction [ECF No. 56] is GRANTED . Plaintiffs’ claims against Cooperativa De Servicios De Excursiones Turisticas De Puerto Rico are DISMISSED without prejudice for lack of jurisdiction. The Clerk is directed to TERMINATE Defendant, Cooperativa De Servicios De Excursiones Turisticas De Puerto Rico, from this case.
DONE AND ORDERED in Miami, Florida, this 27th day of July, 2020.