Opinion
Case No: 03-22549-CIV-ALTONAGA/Bandstra.
July 28, 2004
ORDER ON PENDING MOTIONS
THIS CAUSE came before the Court upon various pending motions. The Court has carefully considered the written submissions of the parties, the pertinent portions of the record, and applicable law.
I. Allegations of the Amended Complaint
Defendants, Alitalia Airlines ("Alitalia") and Air France, are in the business of providing air transportation to the general public. Norwegian Cruise Line Limited, d/b/a Orient Lines ("Orient") is a cruise line that provides cruises for consumers throughout the world. Expeditions Travel Group, Inc. ("Expeditions") is a travel agent that books packages including services provided by Alitalia, Air France and Orient. It is alleged that Expeditions acted as the travel agent for all of the other Defendants.
On or about March, 2002, Plaintiffs, Hannah Flamenbaum, Charles Segal, Helen Zimmerman and Howard Zimmerman (collectively "Plaintiffs") booked an Orient cruise package titled "Mediterranean Treasures," which included air transportation to and from New York, a cruise, and Orient's "cancellation/passenger protection" insurance. The cruise portion of the trip was handled by Orient. Expeditions, the travel agency, apparently made the Plaintiffs' travel arrangements in connection with the cruise, including air travel.
On or about July 29, 2002, the Plaintiffs started their journey by air from New York to Venice, Italy, the embarkation point of the cruise, via Paris, France. Plaintiffs' Orient cruise package also included air transportation from Nice, France, the disembarkation point of the cruise, back to New York. Plaintiffs flew Air France from New York to Paris, and although originally scheduled to continue on Air France from Paris to Venice, they missed their original connecting flight and they had to book a later flight on Alitalia from Paris to Venice. Plaintiffs allege that they had previously advised Defendants that they thought insufficient time had been allotted for them to get on the connecting Air France flight in Paris, but the Defendants nevertheless made no modifications to the Plaintiffs' itinerary. Because Plaintiffs arrived in Venice on a later flight, the ground transfers from the Venice airport to the cruise ship were not available in a timely manner as paid for.
Plaintiffs allege that, despite the assurances by both Alitalia and Air France representatives in Paris to the contrary, and despite the Plaintiffs' unheeded demands that their baggage be returned to them in order to be re-checked by the Plaintiffs themselves onto their new connecting flight, none of the luggage belonging to the Plaintiffs was placed upon the Alitalia flight and it did not arrive in Venice before the cruise departed. According to the Plaintiffs, nearly 100 other cruise passengers found themselves in the same situation on the later-arriving Alitalia flight and other flights connecting to the cruise. It is alleged that the Defendants were fully aware of the likelihood that the Plaintiffs would not timely meet their connecting flight, as this had occurred previously, affecting prior travelers on Orient cruises. Despite this knowledge, Defendants unreasonably failed and refused to alter the Plaintiffs' air transportation arrangements. According to the Plaintiffs, Alitalia and Air France flights are obtained by Orient for its passengers at discounted rates, and Orient receives a fee in exchange.
The Orient cruise ship on which Plaintiffs traveled left port on July 31, 2002, and Plaintiffs disembarked on August 7, 2002 in Nice, France. Plaintiffs allege that they were forced to endure traveling on the cruise without the benefit of their luggage until the cruise was essentially complete, thereby depriving the Plaintiffs of their clothes and toiletries. As a result, Plaintiffs allege that they were compelled to waste at least one day of the cruise hurrying through Venice to purchase minimal toiletries and clothes, before the ship left port. Orient made no accommodation whatsoever for the Plaintiffs, except to provide on-ship dry cleaning of the minimal amount of clothing that the Plaintiffs managed to secure before the ship left port. Upon information and belief, many prior Orient passengers had arrived on Orient cruise ships without baggage and toiletries, simply as a result of the improper, reckless and negligent manner with which the flight arrangements for the cruise packages were handled on a regular basis. Plaintiffs acknowledge that they are unable to determine with certainty, as of the filing of the Amended Complaint, the degree to which each Defendant is responsible to the Plaintiffs.
All of Plaintiffs' claims are based on the Defendants' irresponsible scheduling of connecting flights, which allegedly caused the Plaintiffs to miss their original connecting flight in Paris and the mishandling of their luggage, which resulted in Plaintiffs being separated from their luggage during most of their cruise. The "First Claim for Relief" is a claim based on fraud in the inducement. Here, Plaintiffs allege that Defendants, Expeditions and Orient, falsely represented to the Plaintiffs that the flight arrangements were adequate and would result in the Plaintiffs arriving on time and with their baggage to the cruise, knowing from prior experience with the same or similar itineraries that this would not be the case. Plaintiffs further allege that the Defendants falsely represented to the Plaintiffs that, included within the price of the cruise package, was insurance that would entitle the Plaintiffs to reimbursement should any part of the cruise fail to be provided in a competent and correct manner, or should any part of the cruise not be provided at all. This representation was allegedly false when made and known by the Defendants to be false when made, in that the insurance, which was included in the package — the terms of which were never provided to the Plaintiffs in any form — was only designed to cover cancellations and minimal out-of-pocket expenses incurred by passengers.
The "Second Claim for Relief" raises a breach of contract claim against Expeditions and Orient. It is alleged that Plaintiffs and Defendants entered into a valid and binding contract for the provision of a cruise package, including the provision of a cruise, ground transfers, added-on air transportation and luggage handling, and the provision of all of the above in a proper and correct manner. This contract was allegedly breached when Defendants failed to provide the services promised, including but not limited to their failure to ensure timely airline connections, proper baggage handling and their failure to provide for timely and adequate ground transfers to the ship.
The "Third Claim for Relief" is a negligence claim against Expeditions, Orient, Alitalia and Air France. This claim is also based on "Defendants'" negligent and reckless conduct in arranging for air transportation that was inadequate and in their failure to take adequate steps to reunite the Plaintiffs with their luggage. The "Fourth Claim for Relief" is a false advertising claim against Expeditions and Orient. Defendants purportedly advertised a cruise package for a fixed price that included shipboard accommodations, flight arrangements, secure baggage handling procedures, ground transfers and passenger protection insurance, which was available for purchase. For the reasons already mentioned, Plaintiffs claim that this advertising was false and misleading and known by the Defendants to be so. Finally, the "Fifth Claim for Relief" is a negligence claim raised solely against the airlines, Alitalia and Air France. The same allegations of the "Third Claim for Relief" are reiterated to support this claim. Plaintiffs further allege that Alitalia and Air France repeatedly assured the Plaintiffs that their luggage would arrive with them in Nice, France, when in fact, the airlines' representatives had no reason to believe this would be the case. As to each of their five Claims, Plaintiffs demand judgment as to the Defendants against whom the Claim is asserted, jointly and severally, in the minimum amount of $100,000.
II. Procedural Background
This case was removed from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, by Air France on September 30, 2003 based on Air France's status as an "agency or instrumentality of a foreign state" under the Foreign Sovereign Immunities Act, 28 U.S.C. 1603(b), and thus a "foreign state" for purposes of removal under 28 U.S.C. § 1441(d) (D.E. 1). Plaintiffs were granted leave to file an Amended Complaint, which was filed on January 7, 2004 (D.E. 6). On January 12, 2004, Alitalia filed an Answer, and Affirmative Defenses to the original Complaint, and Cross Claims against Orient, Air France and Expeditions for indemnity and contribution on any judgment or recovery obtained by Plaintiffs in this lawsuit in accordance with the relative culpability of the Defendants (D.E. 10). Alitalia has since withdrawn its Answer to the original Complaint in footnote 1 of its Motion to Dismiss, but has not indicated whether it also withdraws its Cross-Claims.
Defendants have each filed Motions to Dismiss the Amended Complaint for failure to state a cause of action under Fed.R.Civ.P. 12(b)(6) (D.E. 11, 12, 13 15). Expeditions has additionally moved for a more definite statement of all claims under Fed.R.Civ.P. 12(e) (D.E. 11). Orient maintained that the wrong entity was served and that this improper service on Orient should be quashed (D.E. 13), but Orient withdrew its Renewed Motion to Quash Service in footnote 2 of its Reply in support of its Motion to Dismiss the Amended Complaint. Defendants' Motions were filed on January 16, January 26 and January 30, 2004.
All of the afore-mentioned Motions filed by Defendants are hereinafter referred to as "Defendants' Motions." This Order does not address the propriety of service of process on Orient. The correct party, Norwegian Cruise Line Limited, d/b/a Orient Lines, has withdrawn its motion to quash this service.
On March 18, 2004, the Court ordered Plaintiffs to show cause why Defendants' Motions should not be granted by default based on Plaintiffs' failure to respond to any of the Defendants' Motions for approximately two months. (D.E. 25). On March 18 and 19, 2004, Alitalia and Orient specifically moved the Court to grant their Motions by default (D.E. 23 24). Incredibly, Plaintiffs finally filed a Response to Defendants' Motions on April 1, 2004 (D.E. 26), which does not adequately address any of the issues raised by the Defendants, and fails to address some at all. This Order addresses all pending motions as of the date of this Order.
III. Legal Standard on a Motion to Dismiss, and Matters Considered in Deciding Defendants' Motions
For purposes of a motion to dismiss, the court must accept the allegations of the complaint as true. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999). Moreover, the complaint must be viewed in the light most favorable to the plaintiff. St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986). To warrant a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackston v. State of Ala., 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). Nonetheless, to survive a motion to dismiss, a plaintiff must do more than merely label his or her claims. Blumel v. Mylander, 919 F. Supp. 423, 425 (M.D. Fla. 1996). Thus, dismissal of a complaint or a portion thereof is appropriate when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In deciding a motion to dismiss, a court may only examine the "four corners" of the complaint and any matters incorporated therein, and not matters outside the complaint, without converting the motion to dismiss into a motion for summary judgment. See Crowell v. Morgan Stanley Dean Witter Servs., Co., Inc., 87 F. Supp.2d 1287, 1290 (S.D. Fla. 2000); Blount v. Sterling Healthcare Group, Inc., 934 F. Supp. 1365, 1368 (S.D. Fla. 1996).
In Plaintiffs' Response to Defendants' Motions, Plaintiffs attach an exhibit — a claim letter dated December 2, 2002 from Plaintiffs' attorney addressed to Orient Lines' Claims Department that precedes this lawsuit — which has not been considered by the Court, as it is found outside of the pleadings, it is not referenced anywhere in the Amended Complaint, it is not central to any of the Plaintiffs' claims, and none of the issues raised in the Motions to Dismiss turn on examination of this document. See Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-15 (5th Cir. 1980) (the court has complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion).
(Pls.' Resp. to Defs.' Mots. to Dismiss, Ex. A).
Additionally, Orient has attached a photocopy of the Plaintiffs' "Cruise Ticket and Passage Contract" (hereinafter the "Passenger Ticket Contract") with Orient in support of Orient's Renewed Motion to Dismiss Plaintiffs' Amended Complaint. This contract was incorporated by reference in the breach of contract claim in the Amended Complaint. ( See Am. Compl. ¶ 36 ("by accepting the payments of the plaintiffs, the defendants entered into a valid and binding contract for the provision of a cruise package, including the provision of a cruise, ground transfers, added-on air transportation and luggage handling and the provision of the above in a proper and correct manner"); ¶ 38 ("That the foregoing constitutes material breaches of the contract, which was entered into between the plaintiffs and the defendants )) (emphasis added). Plaintiffs, in their Response, do not dispute that the Passenger Ticket Contract is a true and correct copy of the agreement they entered into with Orient. Plaintiffs do not deny that they received the Passenger Ticket Contract, and that its terms were thereby reasonably communicated to them. Therefore, the Passenger Ticket Contract is properly considered without converting Orient's Motion to Dismiss into a motion for summary judgment. See Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) ("where the plaintiff refers to certain documents in the complaint and these documents are central to the plaintiff's claim, the court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment"); Allen v. Miami-Dade County, 2002 WL 732108, *1 n. 1 (S.D. Fla. 2002) (citing Brooks, and considering a collective bargaining agreement that was attached to defendant's motion to dismiss, the motion under consideration, but not to plaintiffs' complaint).
(Orient's Renewed Mot. to Dismiss, Ex. D).
IV. Legal Discussion
Defendants have raised various arguments in their respective Motions to Dismiss the "Claims for Relief" asserted in the Amended Complaint. Each of the Defendants' arguments is now addressed with respect to the "Claim for Relief" to which it relates, and some arguments that relate to all Claims are addressed separately.
A. The "First Claim for Relief" (Fraud in the Inducement) Against Expeditions and Orient is Dismissed Without Prejudice Based on Plaintiffs' Failure to Plead Fraud With the Requisite Particularity
Expeditions and Orient contend that Plaintiffs' First Claim for Relief alleges fraud but does not state the circumstances constituting fraud with the particularity required by Fed.R.Civ.P. 9(b). Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." FED. R. Civ. P. 9(b). Fraud in the inducement claims are subject to the requirements of Rule 9(b). See Tindall v. Gibbons, 156 F. Supp.2d 1292, 1298 (M.D. Fla. 2001) (citing Federal Deposit Ins. Corp. v. Fireman's Fund Ins. Co., 271 F. Supp. 689, 690 (S.D. Fla. 1967)); Caplen v. Guardian Life Ins. Co. of Am., 1996 WL 1057652, *6 (S.D. Fla. 1996).
The elements of fraud in the inducement are: (1) a misrepresentation of material fact, (2) that the representer knew or should have known of the statement's falsity, (3) that the representer intended that the representation would induce another to rely on it, and (4) that the plaintiff suffered injury in justifiable reliance on such representation. See Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1055 (Fla 4th DCA 1999). A material omission may also support a claim for fraudulent inducement. See Allen v. Stephan Co., 784 So.2d 456 (Fla. 4th DCA 2000).
Rule 9(b) must be read in conjunction with the liberal notice pleading standard of Fed.R.Civ.P. 8, which states that a pleading setting forth a claim for relief need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir. 1997). "The Rule [Rule 9(b)] will be satisfied if the complaint sets forth what statements or omissions were made in what documents or oral representations; the time and place of the statements or omissions; who made the statements; the content of the statement and the manner in which they [sic] misled the plaintiffs; and what the defendant 'obtained as a consequence of the fraud.'" Druskin v. Answerthink, Inc., 299 F. Supp.2d 1307, 1321 (S.D. Fla. 2004) (citing Brooks, 116 F.3d at 1370-71); see Cooper v. Blue Cross and Blue Shield of Florida, 19 F.3d 562, 568 (11th Cir. 1994) ("The plaintiff's complaint must allege the details of the defendants [sic] allegedly fraudulent acts, when they occurred, and who engaged in them," including how any statements were fraudulent).
Plaintiffs cannot lump together all "defendants" in an allegation of fraud. Brooks, 116 F.3d at 1381 (citing Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 777-788 (7th Cir. 1994)). The complaint must reasonably notify each defendant of the specific nature of his or her alleged participation in the fraud. See id. Plaintiffs are not expected to specify the exact time and the particular place of each factual omission or misrepresentation, but they must provide a sufficiently narrow time frame from which defendants could derive notice as to when the misrepresentations were made. See Medalie v. FSC Sec. Corp., 87 F. Supp.2d 1295, 1307 (S.D. Fla. 2000).
The First Claim for Relief sufficiently alleges that the misrepresentations were oral, and an approximate time frame during which the representations were made, i.e., March, 2002, when the Plaintiffs booked the cruise through Expeditions. ( See Am. Compl. ¶ 15). The allegations suggest that, since Expeditions was the booking agent, that Plaintiffs dealt with Expeditions, but the fraud in the inducement claim is brought against Expeditions and Orient, without specifying the particular involvement of each in the alleged fraud. Moreover, because the Claim refers to "defendants," it is possible that some of the alleged misrepresentations were made by Air France or Alitalia. Although Plaintiffs probably do not know the names of the persons they talked to, and cannot be expected to know or remember, they do not even allege what positions these persons held, and how Plaintiffs came in contact with them, nor which of the Plaintiffs were involved in the communications.
Plaintiffs are minimally required to provide those allegations regarding the circumstances under which the alleged misrepresentations were made. The Court also finds that Plaintiffs have not sufficiently alleged the content of the misrepresentations regarding "insurance" and the manner in which they were misled by such statements. It appears that Plaintiffs use the word "insurance" to refer to certain protections promised and not provided to passengers in the cruise package, essentially money-back guarantees, but none of this is clear. Plaintiffs must describe with greater particularity the guarantees made and how they contend they were not fulfilled. Plaintiffs must supplement the allegations of the First Claim for Relief as noted to bring this claim in compliance with Rule 9(b).
Given this ruling on Plaintiffs' failure to plead fraud with particularity, the Court need not reach any other arguments challenging the First Claim for Relief. However, to provide the Plaintiffs with guidance in amending their Complaint, the Court makes the following observations regarding one of the other arguments raised in favor of dismissal of the First Claim for Relief, i.e., that the claims are barred by the Florida economic loss rule.
Tort claims that are independent from a contract claim, such as fraudulent inducement claims, are not precluded by the economic loss rule. See Air Turbine Tech., Inc. v. Atlas Copco AB, 295 F. Supp.2d 1334, 1348 n. 11 (S.D. Fla. 2003) (citing HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla. 1996)). The Florida Supreme Court found in 1996 that fraudulent inducement is usually such an independent tort that requires proof of facts separate from a breach of contract action. HTP, Ltd., 685 So.2d at 1239. However, subsequent decisions of this Court, in reliance upon post-1996 Florida case law, have established that "statements or misrepresentations made to induce an individual to enter a contract, if later contained within the terms of the actual contract, cannot constitute a basis on which to bring a fraud claim." Rosa v. Amoco Oil Co., 262 F. Supp.2d 1364, 1366 (S.D. Fla. 2003) (citing Meterlogic, Inc. v. Copier Solutions, Inc., 126 F. Supp.2d 1346, 1362 (S.D. Fla. 2000); Bates v. Rosique, 777 So.2d 980, 982 (Fla. 3d DCA 2001); Excess Risk Underwriters, Inc. v. Lafayette Life Ins. Co., 208 F. Supp.2d 1310, 1318-19 (S.D. Fla. 2002) (finding that fraudulent inducement claim was insufficient to survive the economic loss rule as it was effectively a breach of contract or fraud in the performance claim labeled as a fraudulent inducement action); Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1056 (Fla. 4th DCA 1999) ("A party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.")); Eclipse Med., Inc. v. American Hydro-Surgical Instruments, Inc., 262 F. Supp.2d 1334, 1342 (S.D. Fla. 1999) ("It is patently unreasonable for [Plaintiff] to rely on a promise that the Agreement would be renewed annually . . . based on performance where the Agreement specifically and unambiguously creates only a single renewal term based on performance.").
In Rosa v. Amoco Oil Co., the complaint alleged that the plaintiff relied on misrepresentations by both defendants and entered a transfer agreement for an Amoco service station. Plaintiff claimed that he did not realize that the transfer agreement was for a four-year term only, as defendants had represented to him that the four year term was an initial one subject to automatic renewal for two more consecutive terms of four years each — a twelve-year term in all. The agreements that were transferred in the transfer agreement and that were incorporated therein all specified that the duration of the term was four years. The agreements also contained merger clauses indicating that no other representations or statements, other than those expressly set forth in the writings, were relied upon by the parties. The court held that the economic loss rule barred Plaintiffs' fraudulent inducement claims because "[t]he misrepresentations on which Plaintiff claims reliance and subsequent damage were contradicted in the provisions of the Transfer Agreement he signed." Rosa, 262 F. Supp.2d at 1368.
Thus, it is only where the fraudulent inducement claims involve alleged misrepresentations that are later explicitly covered by unambiguous provisions in a written contract, that such tort claims are barred by the economic loss rule. A relevant consideration in determining whether the economic loss rule bars a fraudulent inducement claim is whether the contract at issue contains a merger clause that supersedes all prior representations and agreements. See Rosa, 262 F. Supp.2d at 1367; Excess Risk, 208 F. Supp.2d at 1319.
Applying these principles, the Passenger Ticket Contract and the allegations of the Amended Complaint reveal that the allegations regarding one of the misrepresentations may be barred by the economic loss rule while allegations regarding the other misrepresentation may not be. The two alleged misrepresentations made by Defendants that are the subject of Plaintiffs' fraudulent inducement claims are: (1) that the flight arrangements that were made were adequate and would result in the Plaintiffs arriving on time and with their baggage to the cruise; and (2) that the price of the cruise package included insurance that would entitle the Plaintiffs to reimbursement should any part of the cruise fail to be provided in a competent and correct manner, or should any part of the cruise not be provided at all. Plaintiffs allege in paragraph 31 of the Amended Complaint that the second representation was false because the "insurance" actually provided in the Passenger Ticket Contract "was only designed to cover cancellations and minimal out-of-pocket expenses incurred by passengers of the package." A review of the terms of the Passenger Ticket Contract confirms that it does provide some "protection" or "insurance" to Plaintiffs, but does not provide "insurance" for everything that could go wrong during or in connection with the cruise, which is what the Plaintiffs claim they understood was the case.
The Amended Complaint refers to "Orients' 'cancellation/passenger protection' insurance," (Am. Compl. ¶ 15), and it is not clear on this record whether Plaintiffs are referring to the "Cancellation" section of the Passenger Ticket Contract or some other separate written insurance agreement between the parties. In any event, whether the insurance was contained in the Passenger Ticket Contract, or in a separate agreement, Plaintiffs allege that cruise insurance was contractually provided to them by the Defendants, just not the insurance that was promised to them before the contract was entered into. Moreover, Article 2 of the Passenger Ticket Contract contains the following merger clause:
PASSAGE CONTRACT CONSTITUTES ENTIRE AGREEMENT
All prior understandings and agreements heretofore entered into between the Passenger and the Company, whether written or oral, are superseded by and merged in the Passage Contract, which alone fully and completely expresses the agreement between the Passenger and the Company in every possible contingency.
(Passenger Ticket Contract, p. 1).
Unlike the alleged promise of "insurance," the first alleged promise to provide adequate flight connections and baggage handling was not explicitly incorporated into any provision of the Passenger Ticket Contract. Thus, the "insurance" allegations are barred by the economic loss rule, while the other unincorporated allegations regarding timely flights and secure baggage handling are not barred on this ground.
Orient also argues that Plaintiffs' tort claims (First, Third, Fourth and Fifth Claims for Relief) fail because Plaintiffs have failed to allege an agency relationship existed between Orient and the airlines, such that the representations or actions of the airlines could be binding on Orient. Plaintiffs allege that "Orient receives a fee in exchange for placing its passengers on AF and Alitalia." (Am. Compl. ¶ 20). A review of the allegations reveals that Expeditions acted as the agent for all of the Defendants. (Am. Compl. ¶ 9). Plaintiffs further allege in the Third Claim for Relief, based on negligence, that Expeditions', Orient's, Air France's and Alitalia's actions constituted "joint and several conduct in arranging for air transportation that was inadequate and in their failure to take adequate steps to reunite the plaintiffs with their luggage." (Am. Compl. ¶ 41). Plaintiffs are not required to prove agency in their pleading. The existence of the alleged agency relationship is usually a question of fact that is not properly considered on a motion to dismiss. See Wood v. Holiday Inns, Inc., 508 F.2d 167, 173 (5th Cir. 1975) (noting that the existence and scope of an agency relationship are generally jury questions) (cited for this proposition in Kobold v. Aetna U.S. Healthcare, Inc., 258 F. Supp.2d 1317, 1322-23 (M.D. Fla. 2003)). Moreover, courts have held that an agency relationship did or could exist between a travel agency or entity serving similar function and an airline. See Afflerbach v. Cunard Line, Ltd., 14 F. Supp.2d 1260, 1265-66 (D. Wyo. 1998); Illinois Corporate Travel, Inc. v. American Airlines, Inc., 700 F. Supp. 1485, 1492 (N.D. Ill. 1989); State ex rel. Rose E. Elson, v. Koehr, 856 S.W.2d 57, 61-62 (Mo. 1993); Black v. Delta Airlines, Inc., 2002 WL 32156264, *8 (Tex.Ct.App. 2002), rev'd in part on other grounds. Under Florida law, an agency relationship between a travel agent and a cruise line may be shown through evidence. See New Commodore Cruise Lines, Ltd. v. Sabio, 724 So.2d 149, 150 (Fla. 3d DCA 1999) (citing Premier Cruise Lines, Ltd. v. Gavrilis, 554 So.2d 659 (Fla. 2d DCA 1999)). Accordingly, Plaintiffs' agency allegations are sufficient to defeat a motion to dismiss.
B. The "Second Claim for Relief" (Breach of Contract) Against Expeditions and Orient is Not Dismissed Against Orient Based on the Passenger Ticket Contract
Orient maintains that Plaintiffs failed to state a cause of action because the Passenger Ticket Contract provides that Orient is not liable for the acts and omissions of third party carriers, such as airlines. Orient asserts that the "gravamen" of Plaintiffs' Amended Complaint is that their luggage was lost in-transit in Paris, and that they suffered harm due to the alleged fact that their luggage was not recovered and returned to them until near the end of their voyage or sometime thereafter. Thus, according to Orient's reading of the Amended Complaint, Plaintiffs do not allege that their luggage was lost by Orient, but that it was lost by either Air France or Alitalia.
Some allegations of paragraph 18 of the Amended Complaint support Orient's reading:
That, despite the assurances by both AF and Alitalia representatives in Paris to the contrary, and despite the plaintiffs' unheeded demands to AF and Alitalia representatives that the baggage be returned to the plaintiffs and re-booked by the plaintiffs themselves onto the connecting flight, none of the luggage belonging to the plaintiffs, [sic] was placed upon the connecting flight and it did not arrive in Venice, as was the case, upon information and belief, for the nearly 100 passengers in the same situation on the later-arriving Alitalia flight and other flights connecting to the cruise.
(emphasis added). ( See also Am. Compl. ¶ 50 ("defendant AF and Alitalia's joint and several conduct in their failure to take adequate steps to ensure that the Plaintiff's luggage traveled with the Plaintiffs and in their failure to later reunite the Plaintiffs with their luggage, was wholly reckless and negligent.")). Similarly, paragraph 17 speaks of the "failure of the defendants to timely and properly provide ground transfers from the Venice Airport to the ship. . . ." (emphasis added).
However, Plaintiffs also allege that Orient had something to do with arranging Plaintiffs' air transportation. ( See Am. Compl. ¶ 20 ("[T]he defendants unreasonably failed and refused to alter air transportation arrangements since the flights obtained by Orient for its passengers are less expensive and Orient receives a fee in exchange for placing its passengers on AF and Alitalia.")) (emphasis added). Thus, although Plaintiffs do not contend that Orient lost their luggage, they assert that Orient was involved in the decisions that led to their luggage being lost. ( See Am. Compl. ¶ 42 ("the fact that the air transfers were inadequate and likely to result in lost baggage and late arrivals was well known to the defendants though [sic] prior experience.")) (emphasis added). The breach of contract claim is expressly based on the following "material breaches of contract": "failure to ensure timely airline connections, proper baggage handling and . . . failure to provide for timely and adequate ground transfers to the ship." (Am. Compl. ¶ 37). Plaintiffs' allegations are therefore not limited to the acts or omissions of the airlines, as Orient suggests.
Orient relies on Articles 10 and 13 of the Passenger Ticket Contract. Article 10 of the Passenger Ticket Contract, entitled "INDEPENDENT CONTRACTORS, OCCURRENCES NOT ABOARD THE VESSEL, TOURS, ETC.," provides, in relevant part:
The Passenger shall have no right to any refund and the Company shall have no obligation or liability of any kind to the Passenger for acts or omissions in connection with or arising out of arrangements with independent contractors since they are not Agents or employees of the Company. Arrangements with independent contractors include but are not limited to the following: . . . (b) Services, . . . or transportation elsewhere than aboard a Vessel owned or operated by the Company which are furnished by others in connection with . . . transportation by others, whether by Vessel or by air, rail, land or by other means, or connections between its Vessels and other carriers. . . .
(Passenger Ticket Contract, p. 3). Article 13, entitled "LIMITATIONS OF LIABILITY," provides, in relevant part:
In making arrangements for carriage by air, . . . transportation, conveyance, . . . or otherwise, the Company acts only as the agent of the Passenger. The Company will exercise reasonable care in making such arrangements but does so on the express condition that in all other respects no liability of any kind, howsoever caused, shall attach to the Company in connection with or arising out of such arrangements. . . . It is agreed that the expression "howsoever caused" includes negligence on the part of the Company, its Masters, crew, servants or agents.
(Passenger Ticket Contract, Art. 13(b)(v), p. 4) (emphasis added).
Article 10 exempts Orient from liability for the acts of third parties, such as airlines, when those independent contractors make arrangements without Orient's involvement. In contrast, Article 13 addresses Orient's liability when it makes travel arrangements for its customers. And yet, Orient's obligation pursuant to Article 13 to provide "reasonable care" in making air travel arrangements for its customers, which it imposed upon itself in a contract that it drafted, is inconsistent with its concomitant limitation of liability for negligence. If Orient is not liable for negligence, then the promise to "exercise reasonable care" is meaningless. Plaintiffs allege that Orient did undertake responsibilities, at least with respect to air travel, and did not exercise reasonable care; therefore, read together, Article 10 and Article 13 do not negate Plaintiffs' breach of contract claims. Instead, the contract is ambiguous as to whether Orient would be liable for negligence based on its alleged failure to exercise reasonable care.
The Court simply cannot determine based on the limited record whether or not Orient is contractually liable for any loss arising out of or in connection with Plaintiffs' air travel arrangements. The parties agree that the Passenger Ticket Contract is a maritime contract to which federal maritime law applies, but they have not been provided with the opportunity to brief the issue of how the ambiguity in the contract perceived by the Court would be resolved applying federal maritime law. Therefore, Orient's Motion to Dismiss based on this contractual defense is denied at this time. The parties shall address this contract interpretation issue if the same contractual defenses are renewed in any motions to dismiss filed in response to another amended complaint.
Because the undersigned has not decided whether or not Orient had a contractual duty to exercise reasonable care under the circumstances, the other issue raised by the Plaintiffs in response to Orient's Motion to Dismiss, i.e., that Orient owed a duty of reasonable care to its passengers under federal maritime law, and it cannot contract away this duty, is not addressed. Moreover, the Court has only touched upon contract interpretation in this Order, and not any other issues pertaining to enforcement of the Passenger Ticket Contract.
In its Motion to Dismiss, Orient reserved the right to assert, at a later stage of the proceedings, other contractual limitation of liability defenses under the Athens Convention, which was incorporated into Article 13 of the Passenger Ticket Contract.
C. The "Third Claim for Relief" (Negligence) Against Expeditions and Orient is Dismissed Without Prejudice Based on the Economic Loss Rule
Here, it is necessary for the Court to address only one of the Defendants' arguments in favor of dismissal, as it is determinative. The Third Claim for Relief against Expeditions and Orient is barred by the economic loss rule, previously discussed in reference to the First Claim. This rule bars a plaintiff from bringing tort claims to recover pure economic damages arising from a breach of contract absent personal injury or property damages. See HTP, Ltd. v. Lineas Aereas Cistarricenses, S.A., 685 So.2d 1238, 1239 (Fla. 1996). As noted, however, the economic loss rule does not eliminate "causes of action based upon torts independent of the contractual breach even though there exists a breach of contract action. Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract." Id.
Plaintiffs' negligence claims based on purely economic losses are inextricably intertwined with Plaintiffs' breach of contract claims. In their breach of contract claim (Second Claim for Relief), Plaintiffs assert that there was a "valid and binding contract for the provision of a cruise package, including the provision of a cruise, ground transfers, added-on air transportation and luggage handling. . . ." (Am. Compl. ¶ 36). Plaintiffs allege that Defendants materially breached the contract by failing to "ensure timely airlines [sic] connections, proper baggage handling and their failure to provide for timely and adequate ground transfers to the ship." (Am. Compl. ¶ 37). The breach of contract claims are asserted only against Expeditions and Orient.
Plaintiffs seek relief in the amount of $100,000 on each of their five claims, jointly and severally against each Defendant, for a total of $500,000. No personal injury or property damage is alleged, and no other relief is sought in the Amended Complaint.
The negligence claims are based on the same actions and omissions by the Defendants "in arranging for air transportation that was inadequate and in their failure to take adequate steps to reunite the plaintiffs with their luggage." (Am. Compl. ¶ 41 (Third Claim for Relief)); ( See also Am. Compl. ¶ 50 ("defendant AF and Alitalia's joint and several conduct in their failure to take adequate steps to ensure that the Plaintiffs' luggage traveled with the Plaintiffs and in their failure to later reunite the plaintiffs with their luggage, was wholly reckless and negligent.") (Fifth Claim for Relief))). Thus, the acts alleged in the two negligence claims against all Defendants are the same acts that allegedly constitute breaches of contract. The economic loss rule therefore applies because Plaintiffs have failed to allege facts independent from the contract.
This dismissal of the Third Claim for Relief as alleged against Expeditions and Orient is without prejudice. See Greens of Town'n Country Condo. Ass'n, Inc. v. Greens of Tampa, Inc., 653 So.2d 1136, 1137 (Fla. 2d DCA 1995) (dismissal of negligence claims by trial court on the ground that they were barred by the economic loss rule should have been without prejudice, and plaintiff should have been allowed an opportunity to amend the complaint).
D. The "Third Claim for Relief" (Negligence) and the "Fifth Claim for Relief" (Negligence) Against Alitalia and Air France are Preempted in Part By the Warsaw Convention, and are Also Barred By the Economic Loss Rule
The United States, France and Italy are all signatories to the Warsaw Convention, the common name for the Convention for the Unification of Certain Rules Relating to International Transportation by Air, which is found in the note following 29 U.S.C. § 40105. The Warsaw Convention applies "to all international transportation of persons, baggage, or goods performed by aircraft for hire." 49 U.S.C. § 40105, Art. 1.
See, e.g., Waters v. Port Auth. of New York, 158 F. Supp.2d 415, 422 (D.N.J. 2001) (noting that both the United States and Italy have adopted the Warsaw Convention); Ins. Co. of North Am. v. Pan American World Airways, Inc., 1986 WL 6921, *2 (N.D. Ill. 1986) (noting that the United States and France are signatories to the Warsaw Convention).
The negligence claims against Alitalia and Air France are based on: (1) the airlines' scheduling of impossible flight connections, and (2) loss and/or delay in the transportation of Plaintiffs' checked baggage, both resulting in Plaintiffs being deprived of their baggage during their Orient cruise. Plaintiffs allege that their baggage was "lost" for some period of time, and that they experienced "delay" in receiving their luggage. Article 18 provides that "[t]he carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air." 49 U.S.C. § 40105, Art 18(1). "The transportation by air" is defined in Article 18 as the period during which the baggage is "in charge of the carrier, whether in an airport or on board an aircraft." 49 U.S.C. § 40105, Art. 18(2). Article 19 provides that "[t]he carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." Article 17, which only concerns bodily injury claims, applies to "accidents" that occurred "on board the aircraft or in the course of any of the operations of embarking or disembarking." Article 24(1) provides that in "cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention."
The Court notes that the "baggage" claims are more likely governed by Article 19, and not Article 18, because Plaintiffs allege that their luggage was eventually returned to them, and there is no allegation that the condition of the luggage was not what it was when it was checked in at the airport.
Plaintiffs' claims relating to inadequate flight scheduling, to the extent they are asserted against the airline Defendants, even though Plaintiffs do not specifically allege the airline Defendants' involvement in scheduling, are claims covered by Article 19 if they allege "damage occasioned by delay in the transportation by air of passengers." These claims are based on the delay occasioned by Plaintiffs not making their original connecting flight in July, 2002, which was scheduled months before, in March 2002. ( See Am. Compl. ¶ 17 ("[P]laintiffs did, indeed fail to timely connect with their original connecting flight in Paris, thereby resulting in the plaintiffs making alternate arrangements to connect on a later Alitalia flight from Paris. . . ."); ¶ 42 ("the air transfers were inadequate and likely to result in lost baggage and late arrivals. . . ."); ¶ 51 ("the flight schedules which were given to the Plaintiffs were likely to result in lost baggage and late arrivals. . . .")) (emphasis added). Plaintiffs argue that inasmuch as their "damages began the instant the defendants, in concert, scheduled their hopelessly impossible flight connections," knowing from "prior experience" that Plaintiffs would not be able to make the connecting flights, the Warsaw Convention does not apply since it is not applicable to damages incurred before embarkation, i.e., prior to the "transportation by air." (Pls.' Resp. to Defs.' Mots. to Dismiss ¶ 13).
The Amended Complaint contains few allegations regarding the negligent acts and/or omissions of Alitalia and Air France, especially with regard to flight scheduling, but the allegations are sufficient to satisfy the notice pleading standard of Rule 8.
The courts that have considered this issue have come to conflicting conclusions. Some courts have held that, based on the plain language of Article 19, unlike Article 18, there is no requirement that the acts on which Article 19 delay claims are based occur during the actual transportation by air. Rather, courts have determined that a delay claim falls under Article 19 as long as delay in the air transportation of passengers results. See Weston v. Federal Express Corp., 29 Fed. Appx. 795, 797 (2d Cir. 2002) ("The Article 18 definition of 'transportation by air' . . . only applies to Article 18."); Harpalani v. Air India, Inc., 622 F. Supp. 69, 71-72 (N.D. Ill. 1985) (same, but noting that the plaintiffs in that case were at the airport and in the charge of the carrier when the activity causing delay of which plaintiffs complained occurred). Other courts have held that where "the alleged negligence did not occur during performance of the contract of carriage but rather days before," then the "damages simply did not arise from a delay in the transportation by air for purposes of Article 19. . . ." Lathigra v. British Airways PLC, 41 F.3d 535, 538 (9th Cir. 1994) (holding that Article 19 did not govern airline passengers' damages claim for delay caused by airline's negligent reconfirmation, days before departure, of a reservation for a connecting flight that had been cancelled and was no longer available); Daniel v. Virgin Atlantic Airways Ltd., 59 F. Supp.2d 986, 990 (N.D. Cal. 1998) (citing Lathigra); Brunwasser v. Trans World Airlines, Inc., 541 F. Supp. 1338 (W.D. Pa. 1982) (holding that cancellation of a scheduled flight prior to embarkation was not delay "in the transportation by air" under Article 19 because this phrase is narrowly construed in the Warsaw Convention in the definition provided in Article 18, which is equally applicable to Article 19, and coverage is limited to "instances in which the plaintiff's injuries [are] closely related to the actual flight itself."). In Brunwasser, the court relied on the fact that the acts complained of "occurred long before [the plaintiff] was to engage in any air travel with the defendant," and that the airline never exercised any significant control over the plaintiff's actions at the time the acts complained of occurred. Brunwasser, 541 F. Supp. at 1345.
The undersigned concludes that Plaintiffs' claims regarding scheduling of inadequate flight connections are sufficiently removed from "air transportation" to escape coverage under Article 19. These claims, therefore, were properly brought as state law negligence claims, but are barred by the economic loss rule, and are thus dismissed without prejudice. The economic loss rule bars these negligence claims against Alitalia and Air France, even though Plaintiffs do not assert contract claims against the airline Defendants. "This is because 'a defendant need not be in privity of contract with a plaintiff in order for the tort claims against that defendant to be dismissed under the economic loss rule, assuming the plaintiff has a contractual remedy against another party. '" Excess Risk Underwriters, Inc. v. Lafayette Ins. Co., 208 F. Supp.2d 1310, 1314-15 (S.D. Fla. 2002) (citing cases in accord) (emphasis added) (finding that defendant could assert the economic loss rule as a defense against plaintiff's tort claims arising from a contractual relationship even though plaintiff had asserted no contractual claims against this defendant and even though defendant was not in privity of contract with plaintiff).
As to Plaintiffs' claims concerning lost baggage and/or delayed transportation of baggage arising during their international flights, these state law negligence claims asserted against Alitalia and Air France are preempted by the Warsaw Convention and the amendments thereto, and are thus dismissed with prejudice. See Siek v. American Airlines, Inc., 238 F. Supp.2d 1309 (S.D. Fla. 2002) (state law claim based on lost baggage preempted by Warsaw Convention); Pina v. American Airlines, Inc., 2000 WL 728007 (S.D. Fla. 2000) (same). See also El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999) (the Warsaw Convention preempts all state law claims falling under Article 17); Rogers v. American Airlines, 192 F. Supp.2d 661, 665, 667 n. 6 (N.D. Tex. 2001) (applying Warsaw Convention preemption under Tseng to Article 19 case, and noting that the preemption also applied to state law claims within the substantive scope of Article 18); Cruz v. American Airlines, Inc., 193 F.3d 526, 530-31 (D.C. Cir. 1999) (the Warsaw Convention's "preemptive impact is much more apparent" after the Tseng ruling; therefore, the Convention provides the "exclusive cause of action in cases 'covered by' Article 18"). Plaintiffs are granted leave to amend the complaint to assert their lost baggage and/or delayed transportation of baggage claims under the Warsaw Convention, if appropriate.
The mishandling of luggage allegedly arose during "the transportation by air." ( See Am Compl. ¶ 18).
Plaintiffs' argument that the Warsaw Convention does not preempt their claims "because the airline defendants acted in a completely reckless and negligent manner. . . ." is unavailing. (Pls.' Resp. to Defs.' Mots. to Dismiss, ¶ 14). The court rejected a similar argument in Siek, where the plaintiff did not dispute that her state law claim was preempted by the Warsaw Convention, but argued instead that summary judgment against her was not warranted due to her claim of "willful misconduct," which provides an exception to the limitation of liability of air carriers. Specifically, Article 25(1) of the Convention provides that "[t]he carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct." Article 25(1) does not concern applicability of the Convention, but only limitations on a plaintiffs damages under the Convention. Therefore, in Siek, the court held that plaintiffs state law claim was covered and preempted by the Warsaw Convention, even if the court construed plaintiff's claim for breach of contract to contain a "willful misconduct" allegation. 238 F. Supp.2d at 1313-14. See also Carey v. United Airlines, 255 F.3d 1044, 1051 (9th Cir. 2001) (rejecting appellant's claim that Article 25's willful misconduct exception saved his claims from the Warsaw Convention preemption; if it is established that the defendant's conduct was "willful," the Convention remains the exclusive source of the plaintiff's remedy, but Article 25 lifts the Convention's limits on liability).
E. Plaintiffs Shall Provide a More Definite Statement of the "Fourth Claim for Relief" (False Advertising) Against Expeditions and Orient
The allegations of fraudulent advertising fail to provide Expeditions and Orient with sufficient notice of the claim because it is not apparent whether it is brought as a common law fraud claim or under a particular statute. This constitutes improper pleading under Fed.R.Civ. 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief. " Defendants correctly state that Plaintiffs are required to specify whether they are asserting a common law fraud cause of action, or a statutory cause of action, and if so, under what statute, because each cause of action contains distinct elements and provides different remedies. Plaintiffs are therefore required to provide a more definite statement of the Fourth Claim for Relief pursuant to Fed.R.Civ.P. 12(e) in any amended complaint filed pursuant to this Order.
F. The Court Has Not Addressed Expeditions' Liability as a Travel Agent
Expeditions argues for the first time in its reply brief in support of its Motion to Dismiss that the Court should dismiss all claims against Expeditions because a travel agent cannot be held liable for the actions of disclosed principals. The Court has not considered this argument because the Plaintiffs have not had an opportunity to respond. See, e.g., Greenhorn v. Marriott Int'l, Inc., 258 F. Supp.2d 1249, 1262-63 (D. Kan. 2003) (refusing to rule on issue raised for the first time in reply brief in support of a motion to dismiss) (citing Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1288 (10th Cir. 2003) (argument raised for the first time in reply brief is waived); Coleman v. B-G Maint. Mgmt. of Colorado, Inc., 108 F.3d 1199, 1205 (10th Cir. 1997) (issues not raised in the opening brief are deemed abandoned or waived)); Davis v. Am. Soc'y of Civil Eng'rs, 290 F. Supp.2d 116, 120 (D.D.C. 2003) ("If the movant raises arguments for the first time in his reply to the non-movant's opposition, the court will either ignore those arguments in resolving the motion or provide the non-movant an opportunity to respond to those arguments by granting leave to file a sur-reply."); Jump v. ACP Enterprises, Inc., 224 F. Supp.2d 1216, 1220 (N.D. Ind. 2002) (new arguments cannot be raised by a party seeking dismissal of a claim under Rule 12 in its reply brief) (citations omitted); Knight v. Storex Systems, Inc., 739 F. Supp. 739, 743 (N.D.N.Y. 1999).
G. Plaintiffs' Failure to "Label" the Claims for Relief and their Incorporation of Preceding Paragraphs Do Not Constitute Violations of the Pleading Rules That Render the Amended Complaint Subject to Dismissal
Orient argues that all of Plaintiffs' Claims fail to identify the causes of action on which they are based, and for this reason, should be dismissed. Notice pleading is all that is required, and clearly Defendants have notice of the nature of Plaintiffs' claims, except as otherwise noted above, and they have been able to respond. Moreover, the Court does not construe the Amended Complaint as a typical "shotgun" pleading that should be dismissed on that basis since it is a relatively short, eleven-page, five-count, fifty-three paragraph Complaint, and most of the same factual allegations support each of the claims.
The Eleventh Circuit has strongly criticized "shotgun pleadings," which are typified by the incorporation of the same lengthy allegations into each claim alleged, creating the arduous task of determining which allegations of fact are intended to support which claims for relief. Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). The Eleventh Circuit has stated:
The purpose of these rules [prohibiting shotgun pleadings] is self-evident, to require the pleader to present his claims discretely and succinctly, so that, his adversary can discern what he is claiming and frame a responsive pleading, the court can determine which facts support which claims and whether the plaintiff has stated any claims upon which relief can be granted, and, at trial, the court can determine that evidence which is relevant and that which is not.T.D.S., Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n. 14 (11th Cir. 1985).
It is hardly a violation in every case for several counts to adopt by reference paragraphs describing the same set of circumstances. "Statements in a pleading may be adopted by reference in a different part of the same pleading. . . ." FED.R.CIV.P. 10(c). This is not one of those cases where the incorporation of all preceding paragraphs makes it "virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." Anderson, 77 F.3d at 366.
In accordance with the foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1. Defendant, Expeditions Travel Group, Inc.'s Motion to Dismiss Plaintiffs' Amended Complaint and Motion for More Definite Statement, filed on January 16, 2004 ( D.E. 11-1 11-2) is GRANTED in part.
2. Defendant, Alitalia Airlines' Motion to Dismiss, filed on January 16, 2004 (D.E. 12) is GRANTED in part.
3. Defendant, Norwegian Cruise Line Limited, d/b/a Orient Lines' Renewed Motion to Quash Service (D.E. 13-1), is DENIED as moot, and its Motion to Dismiss Plaintiffs' Amended Complaint as Against Defendant, Orient Lines, Inc., d/b/a Orient Lines, filed on January 26, 2004 (D.E. 13-2) is GRANTED in part.
4. Defendant, Air France's Motion to Dismiss Amended Complaint, filed on January 30, 2004 (D.E. 15) is GRANTED in part.
5. Defendant, Norwegian Cruise Line Limited, d/b/a Orient Lines' Motion for Entry of Order of Dismissal by Default, filed on March 19, 2004 (D.E. 23), and Defendant, Alitalia Airlines' Motion for Entry of Order Granting Motion to Dismiss by Default, filed on March 18, 2004 (D.E. 24) are DENIED, as Plaintiffs filed a response to Defendants' Motions to Dismiss on April 1, 2004 at D.E. 26.
6. Plaintiffs shall file a Second Amended Complaint in conformity with this Order within twenty (20) days from the date of this Order.
7. Defendants shall file a response to the Second Amended Complaint within fifteen (15) days of service of the Second Amended Complaint.
8. By on or before August 4, 2004 , Alitalia shall file a Notice advising the Court whether it withdraws the Cross-Claims asserted in its Answer to the original Complaint, filed on January 12, 2004 (D.E. 10), to which no responsive pleadings have been filed.