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applying the rationale of the Hessel court
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CASE NO. 20-21997-CIV-LENARD/O'SULLIVAN
2021-04-01
Fred KANTROW and Marlene Kantrow, on their own behalves and on behalf of all other similarly situated passengers who sailed aboard the Celebrity Eclipse between March 1 and March 30, 2020, Plaintiffs, v. CELEBRITY CRUISES INC., Defendant.
Jacqueline Garcell, Jason Robert Margulies, Luis Alexander Perez, Michael A. Winkleman, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiffs. Evan S. Gutwein, Hamilton Miller & Birthisel, Alex M. Gonzalez, Sanford Lewis Bohrer, Scott Daniel Ponce, Holland & Knight, Miami, FL, for Defendant.
Jacqueline Garcell, Jason Robert Margulies, Luis Alexander Perez, Michael A. Winkleman, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiffs.
Evan S. Gutwein, Hamilton Miller & Birthisel, Alex M. Gonzalez, Sanford Lewis Bohrer, Scott Daniel Ponce, Holland & Knight, Miami, FL, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT (D.E. 33)
JOAN A. LENARD, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendant Celebrity Cruises Inc.’s Motion to Dismiss the Second Amended Complaint, ("Motion," D.E. 33), filed February 8, 2021. Plaintiffs Fred Kantrow and Marlene Kantrow, on their own behalves and on behalf of all other similarly situated passengers who sailed aboard the Celebrity Eclipse between March 1 and March 30, 2020, filed a Response on September 15, 2020, ("Response," D.E. 35), to which Defendant filed a Reply on March 15, 2021, ("Reply," D.E. 39). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.
The following facts are gleaned from Plaintiff's Second Amended Complaint, (D.E. 30), and are deemed to be true for purposes of ruling on the Motion to Dismiss.
Since December 2019, there has been a worldwide outbreak of SARS-CoV-2 (hereinafter "COVID-19"), which is now considered a pandemic. (Second Am. Compl. ¶¶ 10, 23.) The virus originated in China and quickly spread throughout Asia, Europe, and North America. (Id. ¶ 23.) The dangerous conditions associated with COVID-19 include its manifestations (e.g., severe pneumonia, acute respiratory distress syndrome, septic shock and/or multi-organ failure ) and/or its symptoms (e.g., fever, dry cough, and/or shortness of breath), the high fatality rate associated with contracting the virus, and its extreme contagiousness. (Id. ¶ 14.)
Defendant first recognized the risks of COVID-19 aboard its vessels on February 5, 2020 when it sent an email to all its prospective passengers, including Plaintiffs, for the subject voyage. (Id. ¶ 16.) That email indicated that any guest or crewmember who had traveled to, from, or through China, Hong Kong, or Macau within 15 days of departure would be unable to board Defendant's ships due to the COVID-19 crisis. (See id. ) The email also indicated that Defendant increased screening requirements and took proactive measures to maintain high health standards onboard its ships. (See id. )
On February 13, 2020, the Centers for Disease Control ("CDC") published the Interim Guidance for Ships on Managing Suspected Coronavirus Disease 2019, which provided guidance for ship operators, including cruise ship operators, to help prevent, detect, and medically manage suspected COVID-19 infections aboard ships. (Id. ¶¶ 25, 27.) Also in February 2020, two cruise ships owned by the Carnival Corporation experienced outbreaks of COVID-19. (Id. ¶¶ 28-31.) First, in early February, the Diamond Princess experienced an outbreak in Yokohama Harbor, Japan; the outbreak began with ten confirmed COVID-19 cases which rapidly multiplied to seven hundred confirmed cases and resulted in a two-week quarantine. (Id. ¶ 28.) Second, in late February, the Grand Princess experienced an outbreak off the coast of California; 103 passengers eventually tested positive for COVID-19. (Id. ¶¶ 30-31.) On March 7, 2020, Vice President Mike Pence met with top cruise industry executives to address the impact of COVID-19 on the cruise industry. (Id. ¶ 32.) The next day, March 8, 2020, the U.S. Department of State, in conjunction with the CDC, set forth a recommendation that U.S. citizens not travel by cruise ships. (Id. ) On March 14, 2020, the CDC issued its first No Sail Order which was applicable to cruise ship operators. (Id. ¶ 33.)
Meanwhile, on March 1, 2020, Celebrity commenced the at-issue voyage aboard the Eclipse from Argentina for a fourteen-night Argentinian and Chilean cruise with approximately 2,500 passengers and 750 crewmembers onboard. (Id. ¶ 34(p).)
On March 2, 2020, Defendant acquired knowledge that a person aboard the Eclipse displayed flu-like symptoms consistent with a positive COVID-19 diagnosis. (Id. ¶¶ 13, 17, 34(q).) However, Defendant did not thereafter, or at any time during the voyage, enact quarantine and/or physical distancing measures amongst passengers and/or crewmembers aboard the vessel. (Id. ¶ 17.)
On March 9, 2020, numerous passengers aboard the Eclipse began exhibiting respiratory symptoms and sought medical care. (Id. ¶ 34(t).)
On March 15, 2020, the Eclipse was denied the ability to dock in Chile due to concerns that passengers and crewmembers may have COVID-19. (Id. ¶ 34(w).) Defendant continued to permit passengers to enjoy the voyage as normal without any quarantine or physical distancing measures. (Id. )
On March 17, 2020, the captain of the Eclipse issued a letter to passengers stating that because they were being denied port entry in Chile, they would be sailing to San Diego in order to disembark. (Id. ¶ 34(x).) Defendant would continue to offer a "full schedule of entertainment, activities, and dining options" to passengers. (Id. ) Defendant attempted to pacify passengers by offering them complimentary alcoholic beverages and otherwise downplaying the severity of a possible COVID-19 outbreak, such as by misrepresenting to passengers on March 28, 2020 that "[a]ll guests onboard remain healthy and happy." (Id. ¶¶ 19, 34(x).) Defendant continued to conduct large gatherings onboard the Eclipse without providing passengers and crewmembers with masks or enforcing any physical distancing measures. (See id. ¶¶ 20-21.)
On March 30, 2020, the Eclipse docked in San Diego. (Id. ¶ 34(bb).) At least 45 passengers and crewmembers ultimately tested positive for COVID-19, and at least two people died. (Id. ¶ 22.)
On May 13, 2020, Plaintiffs Fred and Marlene Kantrow filed their initial Complaint. (D.E. 1.) The same day, the Court issued a Paperless Order Directing Plaintiffs to File an Amended Complaint. (D.E. 4.) Therein, the Court found that Plaintiff's Complaint "is a ‘shotgun pleading’ in that it ‘commits the sin of not separating into a different count each cause of action or claim for relief.’ " (Id. (quoting Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1323 (11th Cir. 2015) ).) The Court noted, for example, that Paragraph 46 of the Complaint contained thirty-two sub-paragraphs alleging separate ways in which Defendant breached the duty of care it owed to Plaintiffs, and that Paragraph 55 contained six sub-paragraphs alleging separate ways in which Defendant breached the duty of care it owed to Plaintiffs. (Id. ) The Court found that "[e]ach alleged breach of the duty of care is a separate claim which must be pled separately." (Id. (citations omitted).)
On May 19, 2020, the Kantrows filed an Amended Complaint asserting claims for negligence (Counts I through XIV), negligent infliction of emotional distress ("NIED") (Counts XV through XVII), and intentional infliction of emotional distress ("IIED") (Counts XVIII through XXI). (D.E. 5.) On September 1, 2020, Defendant filed a Motion to Dismiss the Amended Complaint. (D.E. 7.) Plaintiffs filed a Response, (D.E. 13), to which Defendant filed a Reply, (D.E. 24). On December 29, 2020, the Court granted Defendant's Motion to Dismiss the Amended Complaint, finding, inter alia, that "the damages allegation contained in each count is an impermissible ‘shotgun’-style allegation requiring dismissal." (D.E. 29 at 13 (citing Heinen v. Royal Caribbean Cruises LTD, 806 F. App'x 847, 849-50 (11th Cir. 2020) ).) The Court further found that the Amended Complaint failed to allege that "Defendant engaged in ‘extreme and outrageous conduct’ sufficient to sustain a claim for intentional infliction of emotional distress under maritime or Florida law." (Id. at 23-24 (citing Brown v. Royal Caribbean Cruises, Ltd., Civil Action No. 16-24209-Civ-Scola, 2017 WL 3773709, at *2 (S.D. Fla. Mar. 17, 2017) ).) Consequently, the Court dismissed the IIED claims (Counts XVIII through XXI) with prejudice, dismissed the remaining claims (Counts I through XVII) without prejudice, (id. at 25), and provided Plaintiffs "leave to make a final amendment to cure all deficiencies, if they are able to do so." (Id. at 17 (citing Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014) ).)
The Court further found that Plaintiffs did not have standing to assert claims on behalf of putative class members who suffered injuries that the Kantrows themselves did not suffer. (Id. at 16-17.)
On January 11, 2021, Plaintiffs filed the operative Second Amended Complaint as a class action. (D.E. 30.) The Second Amended Complaint invokes the Court's diversity jurisdiction under 28 U.S.C. § 1332(d)(2), which gives federal district courts jurisdiction over class actions "in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs" and in which diversity of citizenship exists between the plaintiffs and defendant. (Id. ¶ 3.) Alternatively, "[i]n the event that class status is not certified, then this matter is brought under 28 U.S.C. § 1332(a) and/or the admiralty and maritime jurisdiction of this Honorable Court." (Id. )
The Second Amended Complaint alleges that "Plaintiffs, FRED KANTROW and MARLENE KANTROW, are residents of the State of New York[,]" (id. ¶ 1), and that "Defendant, CELEBRITY CRUISES INC., is a foreign entity which conducts its business from its principal place of business in Miami, Florida[,]" (id. ¶ 2). The Second Amended Complaint further alleges that "Plaintiffs, the Class Representatives herein, were lawful passengers aboard Defendant's vessel between March 1 and March 30, 2020, and contracted [COVID-19] as a result of Defendant's careless conduct alleged herein." (Id. ¶ 10.) It further alleges that the Kantrows represent a "general class of passengers" who "contracted COVID-19 and/or were placed at an increased risk of exposure to contracting it.... (Id. ¶ 39.)
The Second Amended Complaint contains the same twenty-one claims as the Amended Complaint:
• Count I: Negligent Failure to Warn (Failure to Warn of Other Passengers/Crew with Positive COVID-19 Symptoms)
• Count II: Negligent Failure to Warn (Misrepresentation as to all Guests Onboard Remaining Healthy)
• Count III: Negligent Failure to Warn (Failure to Warn of COVID-19 Dangers)
• Count IV: Negligent Failure to Warn (Failure to Warn of COVID-19 Safety Measures)
• Count V: Negligent Management of Infectious Disease Outbreak Aboard Vessel (Failure to Take Remedial Action to Control Spread of COVID-19)
• Count VI: Negligent Management of Infectious Disease Outbreak Aboard Vessel (Failure to Take Precautions as to Passengers/Crew with Positive COVID-19 Symptoms)
• Count VII: Negligent Management of Infectious Disease Outbreak Aboard Vessel (Failure to Perform Available Testing)
• Count VIII: Negligent Management of Infectious Disease Outbreak Aboard Vessel (Failure to Enforce Infectious Disease Policies and Procedures)
• Count IX: Negligent Boarding (Failure to Evaluate Passengers/Crew Before Boarding)
• Count X: Negligent Boarding (Failure to Evaluate Passengers/Crew Before Boarding per CDC Guidelines)
• Count XI: Negligent Boarding (Failure to Restrict Access to Vessel)
• Count XII: General Negligence (Failure to Enforce Physical Distancing Measures)
• Count XIII: General Negligence (Failure to Sanitize the Vessel)
• Count XIV: General Negligence (Failure to Enact Vessel Lockdown)
• Count XV: Negligent Infliction of Emotional Distress (Failure to Enforce Physical Distancing Measures)
• Count XVI: Negligent Infliction of Emotional Distress (Misrepresentation as to All Guests Onboard Remaining Healthy)
• Count XVII: Negligent Infliction of Emotional Distress (Negligent Disembarkation Procedure)
• Count XVIII: Intentional Infliction of Emotional Distress (Failure to Screen Boarding Passengers)
• Count XIX: Intentional Infliction of Emotional Distress (Failure to Enforce Physical Distancing Measures)
• Count XX: Intentional Infliction of Emotional Distress (Misrepresentation as to All Guests Onboard Remaining Healthy)
• Count XXI: Intentional Infliction of Emotional Distress (Careless Provision of Alcohol)
(Id. ¶¶ 46-145.) However, the IIED claims (Counts XIII through XXI) do not contain any allegations and are listed only to preserve the issues for appeal. (Id. at 1 n.1, 55-56.) Each Count (except the IIED claims) contains the following damages allegations:
a. Plaintiff, FRED KANTROW, contracted COVID-19 while aboard the Celebrity Eclipse and, as a result, suffered physical injuries, including, but not limited to: fever, pneumonia, severe cough, respiratory distress, fatigue, reduced lung capacity, body aches, chills, nightmares, rash, and gastrointestinal difficulties. Also, as a result of his fear of contracting the virus aboard the vessel before he actually contracted it and Celebrity's tortious response to the virus outbreak aboard the vessel, Plaintiff, FRED KANTROW, suffered separate and severe emotional injuries, including, but not limited to: anxiety, depression, nightmares, and gastrointestinal difficulties.
b. Plaintiff, MARLENE KANTROW, contracted COVID-19 while aboard the Celebrity Eclipse and, as a result, suffered physical injuries, including, but not limited to: fever, severe cough, respiratory distress, fatigue, reduced lung capacity, body aches, chills, nightmares, loss of taste and smell, and gastrointestinal difficulties. Also, as a result of her fear of contracting the virus aboard the vessel before she actually contracted it and Celebrity's tortious response to the virus outbreak aboard the vessel, Plaintiff, MARLENE KANTROW, suffered separate and severe emotional injuries, including, but not limited to: anxiety, depression, nightmares, and gastrointestinal difficulties.
c. In sum, and as a result of contracting COVID-19 as a result of Defendant's tortious conduct outlined above, Plaintiffs suffered physical pain, mental and emotional anguish, lost enjoyment of life, temporary and/or permanent physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, and incurred medical expenses in the care and treatment of their medical conditions. Additionally, as a result of their lung injuries, the Plaintiffs’ working abilities have become impaired. Because the science pertaining to COVID-19 contraction is still developing, Plaintiffs allege that their injuries and damages are permanent or continuing in nature,
and Plaintiffs will suffer the losses and impairments in the future.
(Id. ¶¶ 51; 57; 63; 69; 75; 81; 87; 94; 101; 108; 115; 120; 125; 130; 135; 140; 145.) The negligent infliction of emotional distress claims contain the following additional damages claim:
Additionally, and in support of this Count in particular, both Plaintiffs were exposed to an actual risk of physical injury in connection with COVID-9 [sic] contraction (and, did ultimately contract COVID-19 while aboard the vessel), which caused both Plaintiffs to suffer mental and emotional anguish with physical manifestations of that mental and emotional anguish including, but not limited to: sickness, nausea, gastrointestinal difficulties, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep, nightmares and respiratory difficulties.
(Id. ¶ 135(c); 140(c); 145(c).)
On February 8, 2021, Defendants filed the instant Motion to Dismiss the Second Amended Complaint. (D.E. 33.) It argues that various parts of the Second Amended Complaint should be dismissed for lack of subject matter jurisdiction, lack of standing, and failure to state a claim. (Id. at 3-16.)
II. Legal Standard
a. Rule 12(b)(1)
Under Rule 12(b)(1), a party may move to dismiss a complaint for lack of subject matter jurisdiction. "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
Attacks on subject matter jurisdiction come in two forms: (1) facial attacks, and (2) factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) ).
Facial attacks on a complaint "require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's] complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Lawrence, 919 F.2d at 1529. This circuit has explained that in a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not attach, and the court is free to weigh the evidence, stating:
[in a factual attack upon subject matter jurisdiction] the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—it's very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Lawrence, 919 F.2d at 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981) ).
Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999).
b. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (setting forth the plausibility standard). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Additionally:
Although it must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (noting "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). In evaluating the sufficiency of a plaintiff's pleadings, we make reasonable inferences in Plaintiff's favor, "but we are not required to draw plaintiff's inference." Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, "unwarranted deductions of fact" in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating conclusory allegations are "not entitled to be assumed true").
Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S. Ct. 1702, 1706 n.2, 182 L.Ed.2d 720 (2012). The Eleventh Circuit has endorsed "a ‘two-pronged approach’ in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’ " Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ).
III. Applicable Law
"Federal maritime law applies to actions arising from alleged torts ‘committed aboard a ship sailing in navigable waters.’ " Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011) (citing Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989) ). It also applies to tort actions arising at an offshore location during the course of a cruise. Ceithaml v. Celebrity Cruises, Inc., 739 F. App'x 546, 550 n.4 (11th Cir. 2018) (citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900-02 (11th Cir. 2004) ).
General maritime law is "an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864–65, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986). See also Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1530 (11th Cir. 1990). In the absence of well-developed maritime law pertaining to [Plaintiff's] negligence claims, [the Court] will incorporate general common law principles and Florida state law to the extent they do not conflict with federal maritime law. See Just v. Chambers, 312 U.S. 383, 388, 312 U.S. 668, 61 S. Ct. 687, 85 L. Ed. 903 (1941) ("With respect to maritime torts we have held that the State may modify or supplement the maritime law by creating liability
which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation."). See also Becker v. Poling Transp. Corp., 356 F.3d 381, 388 (2nd Cir. 2004) ("federal maritime law incorporates common law negligence principles generally, and [state] law in particular"); Wells v. Liddy, 186 F.3d 505, 525 (4th Cir. 1999) (in the absence of a well-defined body of maritime law relating to a particular claim, the general maritime law may be supplemented by either state law or general common law principles).
Smolnikar, 787 F. Supp. 2d at 1315 ; see also Hesterly v. Royal Caribbean Cruises, Ltd., 515 F. Supp. 2d 1278, 1282 (S.D. Fla. 2007).
IV. Discussion
Defendant argues that the Court lacks subject matter jurisdiction to the extent the Second Amended Complaint is based upon diversity of citizenship, Plaintiffs lack standing to assert certain claims, and certain claims fail to state a claim upon which relief can be granted. (Mot. at 3-16.)
a. Diversity jurisdiction
Defendant argues that the Court should dismiss the Second Amended Complaint to the extent that subject matter jurisdiction is based on diversity of citizenship "because the Kantrows have not pleaded the requisite diversity of citizenship." (Mot. at 4.) It argues that although the Second Amended Complaint alleges that the Kantrows are "residents" of New York, " ‘[c]itizenship, not residence, is the key fact that must be alleged in the complaint to establish diversity for a natural person.’ " (Id. (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) ).) It argues that "[t]he Kantrows’ failure to allege their citizenship means that the Court cannot exercise diversity jurisdiction over this action." (Id. ) However, Defendant does not challenge Plaintiffs’ alternative invocation of the Court's admiralty jurisdiction. (See id. at 3.)
Plaintiffs argue that this issue is "moot" because "[t]here is record evidence before this Court that both Plaintiffs, Fred Kantrow and Marlene Kantrow, are U.S. citizens who reside in New York." (Id. (citing Notice of Filing Materials in Support of Diversity Jurisdiction, D.E. 34).) Specifically, after Defendant filed the instant Motion to Dismiss, Plaintiffs filed "Materials in Support of this Court's Diversity Jurisdiction," and specifically, (1) Affidavits from Fred and Marlene Kantrow which state that they are each "a U.S. Citizen[,]" (id. at 4, 6), and (2) copies of their United States passports, (id. at 5, 8). Plaintiffs argue that the Court may consider this new evidence without converting the Motion to Dismiss into one for summary judgment to determine whether the evidence cures the pleading defect. (Id. at 2 (citing Travaglio v. Am. Express Co., 735 F.3d 1266, 1269 (11th Cir. 2013) ; Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n.12 (11th Cir. 2011) ).) Counsel for Plaintiffs "submits to the Court that Plaintiffs properly pleaded factual support as to their New York residency, but the undersigned inadvertently omitted to allege their U.S. citizenship." (Id. (citing Second Am. Compl. ¶ 1).) Counsel argues that the evidence submitted on February 22, 2021 "cures any perceived jurisdictional defects, and prays that the Court decide this case on its merits as opposed to pleading technicalities which are now cured." (Id. at 2-3 (citing United States v. Hougham, 364 U.S. 310, 371, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960) ; Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) ; State Farm Mut. Auto. Ins. Co. v. Epright, Case No: 2:15-cv-344-SPC-MRM, 2015 WL 7450108, at *2 (M.D. Fla. Nov. 24, 2015) ).) In its Reply, Defendant argues that the new information "does absolutely nothing. That the Kantrows are U.S. citizens who reside in New York says nothing about their state citizenship , as required by § 1332(a)(1) and (d)(2)." (Reply at 2.) It argues that "the Kantrows’ U.S. citizenship is meaningless for § 1332(a)(2) and (d)(2) because Celebrity is also a U.S. citizen due to its principal place of business being in Florida, which makes those sections inapplicable." (Id. )
"Federal courts exercise limited subject matter jurisdiction, empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution or otherwise authorized by Congress." Taylor, 30 F.3d at 1367 (citing Wright, Miller & Cooper, 13 Federal Practice and Procedure, § 3522 (1984) ). In 28 U.S.C. § 1332, Congress granted federal courts jurisdiction over diversity actions. Relevant here, "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States[.]" 28 U.S.C. § 1332(a)(1). District courts also have original jurisdiction of "any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which ... any member of a class of plaintiffs is a citizen of a State different from any defendant[.]" 28 U.S.C. § 1332(d)(2)(A).
"Citizenship, not residence, is the key fact that must be alleged in the complaint to establish diversity for a natural person." Taylor, 30 F.3d at 1367 ; see also Congress of Racial Equality v. Clemmons, 323 F.2d 54, 58 (5th Cir. 1963) ("Diversity of citizenship, not of residence, is required under 28 U.S.C.A. § 1332. ‘Wherever jurisdiction is predicated upon the citizenship (or alienage) of the parties, it should be noted that since residence is not the equivalent of citizenship, an allegation that a party is a resident of a certain state or foreign country is not a sufficient allegation of his citizenship.’ ") (quoting 2 Moore, Federal Practice § 8.10, p. 1636 (2d Ed.)). For a natural person, citizenship is equivalent to "domicile." Travaglio, 735 F.3d at 1269 (quoting McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) ). " ‘A person's domicile is the place of ‘his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom ....’ ’ " McCormick, 293 F.3d at 1257-58 (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (quoting Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954) )). Thus, "domicile requires both residence in a state and ‘an intention to remain there indefinitely ....’ " Travaglio, 735 F.3d at 1269 (quoting McCormick, 293 F.3d at 1257 ). "Residence alone is not enough." Id. (citing Denny v. Pironi, 141 U.S. 121, 123, 11 S.Ct. 966, 35 L.Ed. 657 (1891) ); see also Smith v. Marcus & Millichap, Inc., 991 F.3d 1145, 1149-1150 (11th Cir. 2021) ("Residency is necessary, but insufficient, to establish citizenship in a state.").
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit before October 1, 1981.
"[A] corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business ...." 28 U.S.C. § 1332(c)(1).
"[C]itizenship should be ‘distinctly and affirmatively alleged.’ " Toms v. Country Quality Meats, Inc., 610 F.2d 313, 316 (5th Cir. 1980) (quoting 2A Moore's Federal Practice s 8.10 at 1662). Where a complaint fails to contain facts regarding the citizenship of each party sufficient to satisfy the court that complete diversity exists, a district court is "constitutionally obligated to dismiss the action altogether if the plaintiff does not cure the deficiency." Travaglio, 735 F.3d at 1268 (citing Stanley v. C.I.A., 639 F.2d 1146, 1159 (5th Cir. Unit B Mar. 1981) ).
Decisions issued by a Unit B panel of the former Fifth Circuit are binding precedent in the Eleventh Circuit. Travaglio, 735 F.3d at 1268 n.2 (citing Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982) ).
Here, the Second Amended Complaint alleges that Defendant "is a foreign entity which conducts its business from its principal place of business in Miami, Florida." (D.E. 30 ¶ 2.) Because Defendant's principal place of business is in Florida, it is deemed to be a citizen of Florida for purposes of diversity jurisdiction. 28 U.S.C. § 1332(c)(1). See also Jerguson v. Blue Dot Inv., Inc., 659 F.2d 31, 35 (5th Cir. Unit B 1981) (holding that "a foreign corporation is a citizen for diversity jurisdiction purposes of a state where it has its principal place of business"). Because all named Parties are United States citizens, to establish diversity jurisdiction in this case Plaintiffs must allege that the Parties are citizens of different states. 28 U.S.C. § 1332(a)(1), (d)(2)(A).
The Second Amended Complaint alleges that "Plaintiffs, FRED KANTROW and MARLENE KANTROW, are residents of the State of New York." (D.E. 30 ¶ 1 (emphasis added).) This statement is insufficient to allege Plaintiffs’ citizenship for purposes of establishing diversity jurisdiction. Smith, 991 F.3d at 1149-1150 ("Residency is necessary, but insufficient, to establish citizenship in a state.") Travaglio, 735 F.3d at 1269 ("Residence alone is not enough."); Clemmons, 323 F.2d at 58 ("Diversity of citizenship, not of residence, is required under 28 U.S.C.A. § 1332. ‘Wherever jurisdiction is predicated upon the citizenship (or alienage) of the parties, it should be noted that since residence is not the equivalent of citizenship, an allegation that a party is a resident of a certain state or foreign country is not a sufficient allegation of his citizenship.’ ") (quoting 2 Moore, Federal Practice § 8.10, p. 1636 (2d Ed.)); see also Physicians Imaging—Lake City, LLC v. Nationwide Gen. Ins. Co. Case No. 3:20-cv-1197-J-34JRK, 2020 WL 6273743, at *1 (M.D. Fla. Oct. 26, 2020) ("[F]or purposes of determining whether a party has adequately pled a basis for subject matter jurisdiction, the Court cannot simply presume that an allegation regarding a party's residence establishes that party's citizenship.").
Assuming without deciding that the Court could properly consider Plaintiffs’ Materials in Support of this Court's Diversity Jurisdiction, (D.E. 34), those materials do not establish Plaintiffs’ state citizenship. Specifically, Fred and Marlene Kantrow each filed (1) an Affidavit stating that they are "a U.S. Citizen," (id. at 4, 6), and (2) a copy of their United States passports, (id. at 5, 7). Nothing in these materials establish the Kantrows’ state citizenship. Accordingly, the Court rejects Plaintiffs’ argument that the pleading deficiency has been cured. It hasn't.
Because Plaintiffs alleged their state of residency and not their state of citizenship, they have failed to properly plead their citizenship for purposes of diversity jurisdiction. Smith, 991 F.3d at 1149-1150 ("Residency is necessary, but insufficient, to establish citizenship in a state.") Travaglio, 735 F.3d at 1269 ("Residence alone is not enough."); see also Tucker v. Thomasville Toyota, 623 F. Supp. 2d 1378, 1381 (M.D. Ga. 2008) ("Because Plaintiff alleged the residency of these parties and not their citizenship, the Plaintiff has failed to properly plead their citizenship for purposes of diversity jurisdiction."). Accordingly, the Court cannot exercise diversity jurisdiction over this case. See Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1088-93 (11th Cir. 2010) (holding that the district court could not properly exercise diversity jurisdiction over the case until the plaintiff pled the citizenship of every one of its members so that the district court could determine that complete diversity existed).
Although Plaintiffs "request leave to amend the operative Complaint with respect to any portions the Court may deem deficient" pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court denies the request. On May 13, 2020, the Court struck Plaintiffs’ original Complaint as an improper "shotgun pleading" and instructed them to "replead their claims consistent with federal pleading standards and to the extent that the claims are supported by specific factual allegations." (D.E. 4.) Plaintiffs subsequently filed an Amended Complaint which the Court dismissed because it contained a "shotgun"-style damages allegation requiring dismissal. (D.E. 29 at 13 (citing Heinen, 806 F. App'x at 849-50 ).) The Court granted Plaintiffs "leave to make a final amendment to cure all deficiencies, if they are able to do so." (Id. at 17 (emphasis in original) (citing Smith, 750 F.3d at 1262 ("District courts have unquestionable authority to control their own dockets" and enjoy "broad discretion in deciding how best to manage the cases before them.")).) Thereafter, they filed the instant Second Amended Complaint which contains deficient allegations regarding diversity jurisdiction. (D.E. 30.) Because the Court has already given Plaintiffs three opportunities to file a complaint that satisfies federal pleading standards and warned them that the Second Amended Complaint would be their final opportunity, and further because the deadline to amend pleadings expired several months ago on November 2, 2020, (see Scheduling Order, D.E. 22 at 2), and further because it is undisputed that the Court has admiralty jurisdiction over this case irrespective of Plaintiffs’ failure to allege diversity jurisdiction, see Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1365 (11th Cir. 2018) ("Personal-injury claims by cruise ship passengers, complaining of injuries suffered at sea, are within the admiralty jurisdiction of the district courts."), the Court denies Plaintiffs’ request for leave to file a Third Amended Complaint.
b. Mere exposure to COVID-19 ("exposure-only"/"fear of" claims)
Next, Defendant argues that claims by putative class members who were merely exposed to COVID-19 should be dismissed because (1) the Kantrows lack standing to assert "exposure-only" claims, and (2) exposure-only claims for negligent infliction of emotional distress are barred as a matter of law. (Mot. at 4-8.) Because exposure-only claims for negligent infliction of emotional distress are barred as a matter of law, Defendant further argues that the Court should dismiss the Kantrows’ claims for emotional distress they allegedly suffered as a result of their "fear of" contracting COVID-19 before they actually contracted COVID-19. (Id. at 9-10.) For the reasons that follow, the Court finds that even assuming arguendo that the Kantrows have standing to assert "exposure only" claims, the "exposure only" and "fear of" claims fail as a matter of law.
Defendant argues that that the "zone of danger" test governs any attempt to recover damages for negligently inflicted emotional distress under maritime law, (id. (citing Chaparro v. Carnival Corp., 693 F.3d 1333, 1338 (11th Cir. 2012) (citing Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 557, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) ), and "as a categorical rule, the zone-of-danger test is not satisfied where a plaintiff alleges mere exposure—if the plaintiff is disease- and symptom-free, then he or she cannot recover damages for emotional distress[,]" (id. (citing Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 141, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003) ; Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. at 427, 430-32, 117 S.Ct. 2113 (1997) ).) Defendant cites two recent cases in which the United States District Court for the Central District of California dismissed with prejudice cruise passengers’ COVID-19 exposure-only claims. (Id. at 7-8 (citing Archer v. Carnival Corp. & PLC, Case No. 2:20-cv-04203-RGK-SK, 2020 WL 7314847, at *6-7 (C.D. Cal. Nov. 25, 2020) ; Weissberger v. Princess Cruise Lines, Ltd., Case Nos. 2:20-cv-02267-RGK-SK, 2020 WL 3977938, at *3-5 (C.D. Cal. July 14, 2020) ).) It argues that "the Supreme Court has expressly held that ‘fear-of’ claims can be asserted only where the plaintiff has already been physically injured." (Id. at 9-10 (citing Ayers, 538 U.S. at 149-50, 123 S.Ct. 1210 ).)
Plaintiffs argue that the "exposure only" claims are well pleaded and should be cognizable at law. (Resp. at 16.) They argue that the cases from the Central District for California were "wrongly decided." (Id. ) They argue that the exposure-only putative plaintiffs were within the zone of danger of contracting COVID-19 aboard the Eclipse. (Id. at 16-17.) They argue that being within the zone of danger of contracting COVID-19 "caused them emotional distress and accompanying physical manifestations." (Id. at 17.)
In its Reply, Defendants maintain that as a categorial rule, disease- and symptom-free plaintiffs cannot assert negligence-based claims for emotional distress. (D.E. 39 at 3 (citing Metro-North, 521 U.S. at 427, 430-32, 117 S.Ct. 2113 ; Ayers, 538 U.S. at 141, 123 S.Ct. 1210 ).) It argues that "every federal district court to have considered the issue has dismissed cruise passengers’ COVID-19 exposure-only claims[.]" (Id. (citing Lindsay v. Carnival Corp., C20-982 TSZ, 2021 WL 488994, at *2-3 (W.D. Wash. Feb. 10, 2021) ; Archer, 2020 WL 7314847, at 6-7 ); Weissberger, 2020 WL 3977938, at *3-5 ).)
Federal maritime law has adopted the "zone of danger" test for claims of negligent infliction of emotional distress. Chaparro, 693 F.3d at 1338 (citations omitted). "The zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Gottshall, 512 U.S. at 547-48, 114 S.Ct. 2396 (1994). "That is, ‘those within the zone of danger of physical impact can recover for fright, and those outside of it cannot.’ " Id. (quoting Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L. Rev. 477, 489 (1982)).
In Metro-North, the Supreme Court analyzed the first method of recovery—i.e., the "physical impact" method—and held that "physical impact" does not "include a contact that amounts to no more than an exposure—an exposure ... to a substance that poses some future risk of disease and which contact causes emotional distress only because the [plaintiff] learns that he may become ill after a substantial period of time." 521 U.S. at 432, 117 S.Ct. 2113. Thus, a plaintiff alleging exposure to an illness or an illness-causing substance (like asbestos) cannot recover under the "physical impact" method "unless, and until, he manifests symptoms of a disease." Id. at 427, 117 S.Ct. 2113. Metro-North did not analyze the second method of recovery under the "zone of danger" test—i.e., the "immediate risk of physical harm" method. See Metro-North, 521 U.S. at 430, 117 S.Ct. 2113 ("The case before us ... focuses on the ... words ‘physical impact.’ ").
In Weissberger, the plaintiffs were on Princess Cruise Line's Grand Princess cruise ship when a COVID-19 outbreak occurred on the ship. 2020 WL 3977938, at *1. The plaintiffs did not test positive for COVID-19 or experience any of its symptoms, but sued Princess Cruise Lines for "emotional distress damages based on their fear of contracting COVID-19 while quarantined on the ship, as well as punitive damages." Id. The defendant moved to dismiss, arguing that the plaintiffs were not within the zone of danger. Id. at *2. The plaintiffs argued that they were within the zone of danger under the "immediate risk of physical harm" theory. Id. at *3. The defendant argued that Metro-North "categorically bars Plaintiffs’ claims, regardless of what prong of the zone of danger test they proceed under[,]" and "that Metro-North stands for the broad holding that to recover on a disease-based emotional-distress claim, the plaintiff must allege either that they contracted the disease or that they exhibit symptoms of it." Id.
The court initially found that the plaintiffs’ negligence claims were properly construed as claims for negligent infliction of emotional distress (whether or not they were labeled as such) because they sought to recover damages only for their "emotional distress" and the "trauma[ ]" they suffered "from the fear of developing COVID-19" while on the ship. Id. at *2. Next, the court agreed with the defendant that "under Metro-North, the Plaintiffs in this case cannot recover for NIED based solely on their proximity to individuals with COVID-19 and resulting fear of contracting the disease." Id. It reasoned:
For one, Plaintiffs’ proposed reading of Metro-North would lead to bizarre results. Under Metro-North, a passenger aboard the Grand Princess who was merely exposed to an individual with COVID-19 could only recover under the first prong of the zone of danger test if they either contracted COVID-19 or manifested symptoms of it. Yet under Plaintiffs’ proposed interpretation, that same passenger could recover without manifesting any symptoms whatsoever so long as they cleverly pled their claim under the second prong of the test. This result is nonsensical and "means that it would be possible to sneak in through the back door what the Court [in Metro-North ] expressly forb[ade] from coming in through the front." (Reply at 2-3, ECF No. 33.) In short, the exception would swallow the rule.
The public policy concerns identified in Gottshall (and reiterated in Metro-North ) further support the Court's conclusion. In Gottshall, the Supreme Court acknowledged that "the potential for a flood of trivial suits, the possibility of fraudulent claims that are difficult for judges and juries to detect, and the specter of unlimited and unpredictable liability" were "well-founded" concerns that informed the Court's decision to limit liability by NIED plaintiffs. Gottshall, 512 U.S. at 557, 114 S.Ct. 2396. If this Court were to adopt the rule invited by Plaintiffs, this would inevitably lead to the scenario the Court in Gottshall was trying to avoid[.] Indeed, given the prevalence of COVID-19 in today's world, Plaintiffs’ proposed rule would lead to a flood of trivial suits, and open the door to unlimited and unpredictable liability. See also Metro-North, 521 U.S. at 433–34, 117 S.Ct. 2113 (emphasizing the "difficulty of separating valid from invalid emotional injury claims" as a reason
for limiting the recovery of exposure-only plaintiffs.")
...
Also, carving out an exception to Metro-North would seem at odds with the Court's holding that case-by-case determinations of negligence are not an adequate guard against unlimited and unpredictable liability. See Metro-North, 521 U.S. at 436, 117 S.Ct. 2113. That is why the Supreme Court imposed a categorical, threshold rule on Buckley's ability to recover for his exposure to insulation dust containing asbestos, even though his employer in fact "conceded negligence." Id. at 427, 117 S.Ct. 2113. As explained by the Court: "just as courts must interpret th[e] law to take proper account of the harms suffered by a sympathetic individual plaintiff, so they must consider the general impact, on workers as well as employers, of the general liability rules they would thereby create. Here the relevant question concerns not simply recovery in an individual case, but the consequences and effects of a rule of law that would permit that recovery." Id. at 438, 117 S.Ct. 2113 (emphasis in original).
Id. at *3-4 (footnote omitted). Thus, the court found that the plaintiffs failed to state a claim because they failed to allege that they were within the zone of danger, and dismissed the complaint with prejudice, "as leave to amend would be futile." Id. at *5 (citing Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988) ).
It appears that every subsequent case to address the issue has adopted Weissberger’s analysis and dismissed the "exposure only"/"fear of" claims. See Lindsay, 2021 WL 488994, at *3 Archer, 2020 WL 7314847, at *6 ; Saltzstine v. Princess Cruise Lines Ltd., Case No. 2:20-cv-04997-RGK-SK, 2020 WL 8475998, at *2 (C.D. Cal. Oct. 23, 2020) ; Crawford v. Princess Cruise Lines Ltd., Case No. 2:20-cv-05546-RGK-SK, 2020 WL 7382770, at *6 (C.D. Cal. Oct. 8, 2020) ; Parker v. Princess Cruise Lines Ltd., Case No. 2:20-cv-03788-RGK-SK, 2020 WL 6594994, at *3 (C.D. Cal. Sept. 18, 2020). Crawford is particularly instructive because in that case, as in this one, the plaintiffs actually contracted COVID-19 and sued to recover emotional distress damages based on their pre-COVID-19 fear of contracting COVID-19. 2020 WL 7382770, at *6. The Court found that the plaintiffs "cannot recover based on their mere exposure to individuals with COVID-19 and their attendant fear of contracting the disease"; rather, they "can only recover emotional-distress damages based on their post-diagnosis emotional distress." Id.
The Court agrees with the analysis in Weissberger and adopts it herein. Plaintiffs’ "exposure only" claims are properly construed as claims for negligent infliction of emotional distress because they seek to recover for the "severe emotional injuries" they suffered as a result of being exposed to COVID-19 on the Eclipse , and their "fear of contracting the virus aboard the vessel before [they] actually contracted it...." (Second Am. Compl. ¶¶ 51; 57; 63; 69; 75; 81; 87; 94; 101; 108; 115; 120; 125; 130; 135; 140; 145.) For the reasons explained in Weissberger, the Court finds that "under Metro-North, the Plaintiffs in this case cannot recover for NIED based solely on their proximity to individuals with COVID-19 and resulting fear of contracting the disease." 2020 WL 3977938, at *2 ; see also Crawford, 2020 WL 7382770, at *6 (finding that the plaintiffs "cannot recover based on their mere exposure to individuals with COVID-19 and their attendant fear of contracting the disease"; rather, they "can only recover emotional-distress damages based on their post-diagnosis emotional distress"). Consequently, Plaintiffs’ "exposure only"/"fear of" claims fail to state a claim upon which relief can be granted. Weissberger, 2020 WL 3977938, at *5 ; Crawford, 2020 WL 7382770, at *6. Because leave to amend would be futile, Weissberger, 2020 WL 3977938, at *5, and because, in any event, the deadline to amend pleadings expired several months ago on November 2, 2020, (see Scheduling Order, D.E. 22 at 2), the Court dismisses the "exposure only" claims with prejudice. Id. (citing Albrecht, 845 F.2d at 195 ); see also Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004) (observing that "a district court may properly deny leave to amend the complaint under Rule 15(a) when such amendment would be futile") (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ).
c. Causation
Next, Defendant argues that each of the negligence-based claims asserted in the Second Amended Complaint should be dismissed because it fails to sufficiently allege causation. (Id. at 11.) It argues that the Kantrows reside in New York and travelled to South America to board the Eclipse for the cruise, but they only make the conclusory allegation that they contracted COVID-19 as a result of exposure aboard the Eclipse. (Id. (citing Second Am. Compl. ¶¶ 11-12).) It argues that the Second Amended Complaint contains no facts supporting this conclusion, such as when they tested positive for COVID-19 or when they began to feel symptoms. (Id. ) As such, it argues that Plaintiffs "have done nothing more than raise the possibility that they contracted COVID-19 due to exposure aboard Eclipse " which is insufficient to meet the Twombly/Iqbal plausibility standard. (Id. at 11-12 (citing Crawford, 2020 WL 7382770, at *6 ; Archer, 2020 WL 7314847, at *7 ; Parker, 2020 WL 6594994, at *4 ; Wortman v. Princess Cruise Lines Ltd., CV 20-4169 DSF, (D.E. 30) at 7 (C.D. Cal. Aug. 21, 2020)).)
Plaintiffs argue that they "very clearly allege that they: i) contracted COVID-19; ii) aboard the Celebrity Eclipse ; iii) as a result of Celebrity's careless response to the COVID-19 outbreak aboard its vessel." (Resp. at 3 (citing Second Am. Compl. ¶¶ 10-13).) They argue that Defendant seeks to hold them to a pleading standard that is not required by the federal rules, which requires "notice pleading." (Id. at 3-4 (citing Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) ; Marabella v. NCL (Bahamas), Ltd., 437 F. Supp. 3d 1221, 1228-29 (S.D. Fla. 2020) ).) They argue that based on the allegations in the Second Amended Complaint, one can reasonably infer that Defendant proximately caused their injuries. (Id. at 4 (discussing Marabella, 437 F. Supp. 3d at 1228-29 ).) They argue that the Second Amended Complaint (1) alleges that they contracted COVID-19 while aboard the Eclipse , (id. at 5 (citing D.E. 30 ¶¶ 11-12)); (2) contains twelve claims which each identify a single breach of the duty of care which they allege proximately caused them to contract COVID-19 as a result of Defendant's careless conduct, (id. (citing D.E. 30 Counts I through XII)); and (3) alleges specific facts supporting their contention that Defendant's careless response to the COVID-19 outbreak aboard the Eclipse directly caused Plaintiffs to contract the virus aboard the vessel, (id. at 5-7 (citing D.E. 30 ¶¶ 22, 28, 32, 33, 34)). However, in a footnote, Plaintiffs concede:
Plaintiffs did not allege when they first tested positive for COVID-19 following the cruise (for Plaintiff, Fred Kantrow, on April 3, 2020; for Plaintiff, Marlene Kantrow, on April 20, 2020), or when they began to feel symptoms of the virus (for Plaintiff, Fred Kantrow, on/about April 1, 2020; for Plaintiff, Marlene Kantrow, on/about April 4, 2020). However,
Plaintiffs disclosed this information to Defendant, Celebrity in response to written discovery requests, and provided Plaintiffs’ positive COVID-19 test results for same.
Plaintiffs contend that such information need not be pleaded in order to satisfy the notice pleading standard for causation. However, if the Court disagrees, the Plaintiffs are able to amend, and note that the Court in Crawford granted the plaintiffs there an opportunity to amend on those two points. See Crawford v. Princess Cruise Lines Ltd., 2020 WL 7382770, at *6 ("Plaintiffs may, however, amend their Complaint ...")
(Id. at 8 n.7.)
In its Reply, Defendant argues that "courts have unanimously identified the basic facts that are necessary to plausibly allege causation for cruise passengers’ COVID-related claims: when the passenger first felt ill, when the passenger tested positive for COVID, and how those dates relate to the passengers’ activities and whereabouts during the cruise, including when the cruise began and ended." (Reply at 7 (citing Crawford, 2020 WL 7382770, at *6 ; Archer, 2020 WL 7314847, at *7 ; Parker, 2020 WL 6594994, at *4 ; Wortman, CV 20-4169 DSF, (D.E. 30) at 7 (C.D. Cal. Aug. 21, 2020)).) It argues that the allegations Plaintiffs rely upon do not provide this basic information. (Id. at 8.) They observe that "[i]n a footnote, the Kantrows sheepishly admit that they have this information, but chose not to include it in any of their three complaints." (Id. (citing Resp. at 8 n.7).) They argue that the Court should not grant them leave to file a third amended complaint so that they may add the allegations:
[I]t is too late for that. When the Court dismissed the Kantrows’ amended complaint, it granted them leave to file a second amended complaint with this express warning: "The Court will grant Plaintiffs leave to make a final amendment to cure all deficiencies" (DE 29, p. 17) (emphasis in original). The Kantrows have been given extraordinary opportunities to assert claims against Celebrity. Granting leave to file a fourth complaint is simply too much.
(Id. )
The Federal Rules of Civil Procedure's notice pleading standards govern maritime negligence actions. Marabella, 437 F Supp. 3d at 1228-29. Rule 8(a) requires a complaint to contain a statement of the Court's jurisdiction, a demand for the relief sought, and, relevant here, "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a). The Supreme Court has explained that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Edwards, 602 F.3d at 1291. "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). As one court in this district has stated in regard to a maritime negligence claim:
While notice pleading does not require the pleader to allege a "specific fact" to cover every element or to plead "with precision" each element of a claim, it is still necessary a complaint "contain either direct or inferential allegations respecting all the material elements necessary
to sustain a recovery under some viable legal theory."
Brown v. Oceania Cruises, Inc., CASE NO. 17-22645-CIV-ALTONAGA/Goodman, 2017 WL 10379580, at *5 (S.D. Fla. Nov. 20, 2017) (quoting Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007) ).
"To prove causation, a plaintiff must establish ‘a cause and effect relationship ... between the alleged tortious conduct and the injury’—that is, cause in fact (or ‘actual’ or ‘but-for causation’)—as well as the ‘foreseeab[ility]’ of the ‘conduct in question’ producing the alleged harm—i.e., ‘proximate causation.’ " Marabella, 437 F. Supp. 3d at 1229 (quoting Bell v. Beyel Bros., Inc., No. 2:16-CV-14461, 2017 WL 1337267, at *3 (S.D. Fla. Apr. 7, 2017) (quoting Smith v. United States, 497 F.2d 500, 506 (5th Cir. 1974) )). "[A]t the motion to dismiss stage, it is enough if one can reasonably infer actual and proximate causation for Plaintiff's injuries from Defendant's alleged negligence." Id. (citing Bell, 2017 WL 1337267, at *3 ). "This is satisfied where a sufficiently detailed factual background of the incident is alleged along with allegations of the purported foreseeable causes of a plaintiff's injuries." Id. (citations omitted).
Here, the Second Amended Complaint alleges that Plaintiffs "were lawful passengers aboard Defendant's vessel between March 1 and March 30, 2020, and contracted SARS-CoV-2 (hereinafter ‘COVID-19’) as a result of Defendant's careless conduct alleged herein." (D.E. 30 ¶ 10.) It alleges that both Fred and Marlene Kantrow "contracted COVID-19 while aboard the Celebrity Eclipse during the subject voyage...." (Id. ¶¶ 11-12.) The Second Amended Complaint further contains a detailed factual background of the incident with allegations regarding the purported foreseeable causes of Plaintiffs’ injuries. (See id. ¶¶ 28, 32, 33, 34.) At the motion to dismiss stage, this is sufficient to plausibly allege causation. See Marabella, 437 F. Supp. 3d at 1229.
d. De minimis damages
Next, Defendant argues that even if the Second Amended Complaint adequately pleads causation, Plaintiffs’ claims for experiencing cold- and flu-like symptoms as a result of COVID-19 should be dismissed with prejudice because such damages are de minimis. (Mot. at 13-15.) It argues that "the Kantrows are seeking to recover for what is quintessentially the ‘sorts of intangible injuries normally small and invariably difficult to measure that must be accepted as the price of living in society rather than made a federal case out of.’ " (Id. at 13 (citing Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993) ).) It argues that "[t]he cost of litigating such claims in federal court – including how to assign monetary value to, or quantify monetary compensation for, a cough, fever, chills, aches, etc. – overwhelms any benefit that could be obtained by a claimant." (Id. (citing Hessel v. O'Hearn, 977 F.2d 299, 303 (7th Cir. 1992)) ; Von Nessi v. XM Satellite Radio Holdings, Inc., 2008 WL 4447115, at *6 (D.N.J. Sept. 26, 2008) (collecting decisions, including Alan's of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1421 (11th Cir. 1990) ) ("This Court invokes the doctrine of de minimis non curat lex, which translates as the law does not care for, or take notice of trifling matters. The doctrine applies where no damage is implied by law from the wrong, and only trifling or immaterial damage results therefrom.") (internal quotation marks and citations omitted.").) Defendant further argues that
allowing the Kantrows to proceed with such claims would open the metaphorical floodgates. If these plaintiffs can sue, then so too can the restaurant patron who catches a cold because diners at a nearby table were sick and sneezing, or
because the patron's table was not cleaned well enough between seatings and one of the table's prior occupants was sick. The same applies to the person who worries that she might become sick – or later actually develops a fever – after sitting next to someone on the Metrorail who had glassy eyes and was coughing into a balled-up tissue during the entire ride to downtown.
(Id. at 14.)
Plaintiffs argue that under Supreme Court and Eleventh Circuit precedent, an injury need not be significant to confer standing. (Resp. at 8-9 (citing United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) ; Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009) ; Tillman v. Ally Fin. Inc., Case No: 2:16–cv–313–FtM–99CM, 2016 WL 6996113, at *4 (M.D. Fla. Nov. 30, 2016).) They argue that the COVID-19-related damages alleged in their complaint—including fever, pneumonia, severe cough, respiratory distress, fatigue, reduced lung capacity, body aches, chills, nightmares, rash, loss of taste and smell, and gastrointestinal difficulties, (id. at 9-10 (citing Second Am. Compl. ¶¶ 11-12)—are not de minimis. (Id. at 10 (citing Crawford, 2020 WL 7382770, at *4 ).
In its Reply, Defendant notes that whether Plaintiffs’ damages are sufficient to satisfy Article III standing requirements is not the issue. (D.E. 39 at 9.) Rather, "the issue is that claims for cold- and flu-like symptoms are not actionable under the doctrine of de minimis non curat lex." (Id. (citing Swick, 11 F.3d at 87 ); Hessel, 977 F.2d at 303 ).
Courts have applied the maxim of de minimis non curat lex—which translates to "the law does not concern itself with trifles[,]" Black's Law Dictionary 544 (11th ed. 2019)—to deny relief in certain contexts where the claimed loss or damage is insignificant. See, e.g., United States v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (concluding that a de minimis delay during a traffic stop did not violate the Fourth Amendment's prohibition against unreasonable seizures). As Judge Posner explained in Hessel, "if a loss is not only small but also indefinite, so that substantial resources would have to be devoted to determining whether there was any loss at all, courts will invoke the de minimis doctrine and dismiss the case, even if it is a constitutional case. The costs of such litigation overwhelm the benefits." 977 F.2d at 303. However, he also observed that the de minimis doctrine "has little or no proper application to cases in which the monetary cost of the loss is, though tiny, readily determinable." 977 F.2d at 303. "The law does not excuse crimes or torts merely because the harm inflicted is small." Id.
In Crawford, the defendant argued that the court should dismiss the plaintiffs’ claims because their COVID-19 symptoms were de minimis. 2020 WL 7382770, at *4. The court rejected the argument, noting that the complaint alleged that the plaintiffs had suffered "physical pain" on account of contracting COVID-19, and stating that "the Court is not prepared to hold that only some COVID-19 symptoms are sufficiently harmful to warrant compensation at the pleading stage." Id. (internal quotation marks and citation omitted).
Here, Plaintiffs have alleged more than "physical pain." (See Second Am. Compl. ¶¶ 11-12 (alleging that they suffered fever, pneumonia, severe cough, respiratory distress, fatigue, reduced lung capacity, body aches, chills, nightmares, rash, loss of taste and smell, and gastrointestinal difficulties).) As in Crawford, the Court is not prepared to conclude at the motion to dismiss stage that these symptoms are not sufficiently harmful to warrant compensation. 2020 WL 7382770, at *4.
e. Standing to sue for future injuries
Finally, Defendant argues that Plaintiffs lack standing to maintain claims for future injuries caused by allegedly contracting COVID-19 aboard the Eclipse because "the Kantrows concede that there is no basis for the premise that a case of COVID-19 contracted in 2020 will cause future injuries." (Mot. at 15.) Specifically, they cite the following statement contained in each of Plaintiffs’ damages clauses: "Because the science pertaining to COVID-19 contraction is still developing, Plaintiffs allege that their injuries and damages are permanent or continuing in nature, and Plaintiffs will suffer the losses and impairments in the future[.]" (Second Am. Compl. ¶¶ 51c, 57c, 63c, 69c, 75c, 81c, 87c, 94c, 101c, 108c, 115c, 120c, 125c, 130c, 135d, 140d, 145d) (emphasis added). Defendants argue that Plaintiffs have failed to establish an injury in fact because they have not pled that it is "substantially likely" that the COVID-19 they allegedly contracted on the Eclipse in March 2020 will cause future injuries. (Id. at 16 (discussing Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340 (11th Cir. 2000) ).)
Plaintiffs argue that Plaintiffs’ argument is "at best, premature for ultimate resolution here, and, at worst, completely unfounded." (Resp. at 11.)
They are premature for resolution at this juncture because Plaintiffs alleged sufficient factual support that i) they have already suffered reduced lung capacity, [D.E. 30, ¶¶11-12]; and ii) there is a substantial likelihood that they will suffer lung-related injuries in the future, [D.E. 30, ¶15 (alleging scientific support that COVID-19 contraction can cause "permanently reduced lung capacity")]. Celebrity's position is unfounded because other Courts considering similar issues have already decided these COVID-related future damages can be established, and that they are factual questions that require expert analysis. Crawford, 2020 WL 7382770, at *5 ("Currently, the long-term effects of COVID-19 on the body are unclear, even in asymptomatic cases ... The Court would benefit from further briefing on this issue, and additional evidence in the form of expert testimony").
Contrary to Celebrity's argument, [D.E. 33, pg. 15], just because the science behind COVID-19 future injuries is still developing does not mean that Plaintiffs cannot establish a "substantial likelihood" of future injury. In other words, that science is still developing on this issue merely means that scientific studies are still taking place to understand the full scope and extent of the future (or latent) injuries caused by COVID-19 contraction. In other words, that there is burgeoning scientific support for future COVID-19-related injuries per se establishes there is a "substantial likelihood" for Plaintiffs to develop same.
(Id. (footnote in original, other footnote omitted).)
In its Reply, Defendant argues that Plaintiffs’ "reliance on Crawford is misplaced because that court was not considering the issue of standing. Indeed, delaying consideration of this issue flies in the face of the basic premise that ‘standing is a threshold question that must be explored at the outset of any case.’ " (D.E. 39 at 10 (quoting Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1231-33 (11th Cir. 2019) ).) It further argues that the Kantrows’ allegedly reduced lung capacity, which could be permanent, "is not an allegation of future injury. That alleges a current injury that might have continuing effect." (Id. )
The judicial power of federal courts extends only to "cases" and "controversies." Spokeo, Inc. v. Robins 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing U.S. Const. Art. III, § 2). To maintain a lawsuit in federal court to seek redress for a legal wrong, the plaintiff must have "standing" to sue—that is, he "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. At the pleading stage, "the plaintiff must ‘clearly ... allege facts demonstrating’ each element." Id. (citing Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ).
"To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 1548 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’ " Id. (citations omitted). "A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist." Id. (citing Black's Law Dictionary 479 (9th ed. 2009)). However, "the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure." Id. at 1549 (citing Restatement (First) of Torts §§ 569 (libel), 570 (slander per se ) (1938)). " ‘An allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a " ‘substantial risk’ that the harm will occur.’ " Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ).
The Court rejects Defendant's "attempt to parse" Plaintiffs’ claims to dismiss for lack of standing only those for future injuries. Sierra Club v. Young Life Campaign, Inc., 176 F. Supp. 2d 1070, 1084 (D. Colo. 2001). "All that is required to satisfy Article III is that the [Plaintiffs] have standing on some basis to bring [their] claims." Id. Defendant has cited no prior case finding that a plaintiff who had standing to sue for past and/or present injuries lacked standing to sue for future injuries. The Court's own research has revealed cases that dismiss for lack of standing claims for injunctive relief for failure to allege future injury while permitting other claims to go forward. See, e.g., Fishon v. Mars Petcare US, Inc., 501 F. Supp. 3d 555, 563 (M.D. Tenn. 2020) (finding that "Plaintiffs have plausibly alleged an Article III injury to seek damages, but they have not plausibly alleged a threat of future injury to seek injunctive relief"); Hidalgo v. Johnson & Johnson Consumer Cos., Inc., 148 F. Supp. 3d 285, 291 (S.D.N.Y. 2015) (dismissing claims for injunctive relief for failure to allege future injury because " ‘[a] plaintiff seeking injunctive ... relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future’ ") (quoting Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) ). However, the Court has found no prior case dismissing a claim for lack of standing solely to the extent it seeks monetary damages for future injuries while permitting the same claim to proceed to the extent it seeks monetary damages for past or present injuries.
The Court finds that Plaintiffs have standing to sue Defendant because the Second Amended Complaint plausibly alleges that Plaintiffs (1) suffered an injury in fact, (see Second Am. Compl. ¶¶ 11-12, 51, 57, 63, 69, 75, 81, 87, 94, 101, 108, 115, 120, 125, 130, 135, 140, 145); (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial decision. Whether Plaintiffs can establish future injuries is an issue not ripe for adjudication at the motion to dismiss stage. Crawford, 2020 WL 7382770, at *5.
V. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
1. Defendant's Motion to Dismiss the Second Amended Complaint (D.E. 33) is GRANTED IN PART AND DENIED IN PART consistent with this Order;
2. The Second Amended Complaint is DISMISSED to the extent that it is predicated on the Court's diversity jurisdiction;
3. The claims asserted on behalf of putative class members who were merely exposed to COVID-19 but did not contract COVID-19 are DISMISSED WITH PREJUDICE ; and
4. Plaintiffs’ claims for emotional distress allegedly suffered before they contracted COVID-19 based on their fear of contracting COVID-19 are DISMISSED WITH PREJUDICE .
DONE AND ORDERED in Chambers at Miami, Florida this 1st day of April, 2021.