Opinion
No. 6:02-cv-542-Orl-31JGG
January 2, 2003
ORDER
This Court has for its consideration Defendant's Motion to Dismiss Plaintiffs'' Amended Complaint and incorporated memorandum of law (Doc. 43) and Plaintiff's Response thereto (Doc. 48). The Court has carefully considered the Plaintiff's Second Verified Amended Complaint, the Defendant's Motion and accompanying memorandum, Plaintiff's Response and accompanying memorandum, and is otherwise fully advised in the premises.
I. INTRODUCTION
Stires' claims arise from an alleged rape by a crew member and employee of the Defendant while traveling on the M/S Tropicale. The relevant background facts have been fully detailed in this Court's Order (Doc. 38, entered November 7, 2002) and are incorporated herein. Stires' multi-count second amended complaint against Carnival asserts the following claims: (1) negligence; (2) negligent investigation, hiring, retention, supervision, and management; (3) assault, battery, and rape under the theories of respondeat superior and direct liability; (4) intentional infliction of emotional distress under the theory of respondeat superior and direct liability; (5) fraud and misrepresentation; and (6) violation of Florida's Deceptive and Unfair Trade Practices Act, section 501.101 et seq., Florida Statutes.
II. STANDARD OF REVIEW
A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); see also Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994) (citation omitted). In evaluating a motion to dismiss a complaint, the court must accept all the alleged facts as true, and draw all inferences from those facts in the light most favorable to the plaintiff. See, e.g., Cruz v. Beto, 405 U.S. 319 (1972); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). The court, however, does not generally accept as true conclusory allegations. South Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n. 10 (11th Cir. 1996) (citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)). A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). Consideration of matters beyond the complaint is improper in the context of a motion to dismiss. Id.
III. ANALYSIS
Here, as in its previous motion, Carnival asserts that Stires has failed to state a claim because she has alleged an improper standard of care throughout her complaint. In this regard, Carnival argues that because Stires has incorporated the preliminary paragraphs into all of the counts of her Second Verified Amended Complaint, each count must be dismissed for alleging an improper standard. To the extent that Carnival's motion has any merit, this is negated by Stires' stipulation in her response that the legal standard alleged in Counts 1 and 2 (the negligence-based claims) is "reasonable care under the circumstances." (Response at 7, Doc. 48).As to the other counts, Carnival's motion is wholly without merit. As discussed by this Court in two previous Orders and in Doe v. Celebrity Cruises, 145 F. Supp.2d 1337, 1341-45 (S.D. Fla. 2001), absent binding Eleventh Circuit precedent, the majority rule is that a common carrier, such as a cruise line, is vicariously liable for the intentional torts of its employees. See id. and citations discussed therein. Thus, dismissal is not warranted on this ground.
Furthermore, Carnival argues that Stires has failed to state a claim under the Florida "Deceptive and Unfair Trade Practices Act" ("FDUTPA"), Chapter 501, Part II, Florida Statutes because she has not properly alleged injury. If a complaint alleges that a business made an allegedly misleading advertisement by making an offer or promise which the advertiser did not intend to keep, the complaint properly alleges claims for violations of FDUTPA. Izadi v. Machado (Gus) Ford, Inc., 550 So.2d 1135, 1140-41 (Fla. 3d DCA 1989) (citations omitted). Furthermore, as a general rule,
the measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties. A notable exception to the rule may exist when the product is rendered valueless as a result of the defect — then the purchase price is the appropriate measure of actual damages.Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 314 (Fla. 4th DCA 1998) (quoting Rollins, Inc. v. Heller, 454 So.2d 580, 584 (Fla. 3d DCA 1984) (internal citations omitted)).
The Court finds Carnival's argument unmeritorious. In the complaint, Stires alleges (1) that the value of the cruise she received was less than the value of the cruise promised and advertised, (2) specific misrepresentations of Carnival both written and oral in its advertisements, (3) knowledge on the part of Carnival that the statements were false when the misrepresentations were made, (4) where the misrepresentations occurred, (5) that the statements were made to induce Stires to rely on them, and (6) her detrimental reliance on the statements. Although Stires did not specify the value of the cruise promised and the value of the cruise received, which is the proper measure of FDUPTA damages, she has complied with Federal Rules of Civil Procedure 8(a) and 9. Read in the light most favorable to Stires, it cannot be said that she has failed to plead her claim with particularity. Hence, dismissal is not warranted.
IV. CONCLUSION
Based on the foregoing, it is therefore,
ORDERED AND ADJUDGED that Defendant's Motion (Doc. 43) is DENIED. DONE and ORDERED.