United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant Carnival Corp. &
PLC d/b/a Carnival Cruise Line's
(“defendant”) motion to dismiss or in the
alternative to transfer venue. For the reasons set forth
below, the court grants in part and denies in part
Cheryl Gibson-Dalton (“plaintiff”) boarded
defendant's “Carnival Fantasy” cruise liner
on or about April 21, 2013. When plaintiff reached her room,
she realized that she had not been given a bed, but instead,
a “lounge chair turned bed” to sleep on. Compl.
¶ 5. Plaintiff informed defendant's management
personnel that she did not wish to sleep on the
“make-shift, temporary, and unsafe bed, ” but was
told the make-shift bed was all that was available.
Id. ¶ 6. On the fifth night of her cruise,
“while [p]laintiff was attempting to get up, the
make-shift mattress shifted, causing [p]laintiff to fall with
great force, landing on her head and neck.”
Id. ¶ 8. Plaintiff alleges that she suffered
great bodily injury as a result of the fall, and brings
claims for negligence, outrage, and unfair trade practices.
ticket was booked by her friend, Gennalo Gibson
(“GG”) on February 24, 2013. Def.'s Mot. Ex.
A, Petisco Aff. ¶ 7. Defendant has presented a sworn
affidavit claiming that after GG booked the tickets, it sent
her an email confirmation, notifying her that the cruise was
subject to the terms and conditions set forth in the
“Cruise Ticket Contract” (the “Ticket
Contract”). Id. ¶ 9. Defendant further
avers that the email specifically stated that the Ticket
Contract included limitations on the passenger's right to
sue defendant and explained how to access those terms and
conditions. Id. Notably, defendant does not have a
record of the specific email that was sent to GG, but has
provided an “exemplar” email. Id.
¶¶ 9, 10.
has provided evidence that plaintiff accessed defendant's
Online Check-In system, which allows passengers to submit
information prior to departure in order to streamline the
boarding process. Id. ¶¶ 12, 15. In order
to complete the Online Check-In system, the passenger must
acknowledge receipt of the Ticket Contract's terms and
conditions. Id. ¶ 13. If the passenger fails to
acknowledge receipt of the Ticket Contract terms and
conditions, the Online Check-In system will not provide the
passenger with a boarding pass and the passenger is required
to acknowledge receipt of the Ticket Contract's terms and
conditions at the pier prior to boarding. Id. ¶
has also provided an “exemplar” copy of the
Ticket Contract that was used at the time of plaintiff's
cruise. Id. ¶ 16; see also Answer Ex.
A, Ticket Contract. The first two paragraphs of the Ticket
Contract, which appear in bold, all-caps font, read as
IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY BINDING
CONTRACT ISSUED BY CARNIVAL CRUISE LINES TO, AND ACCEPTED BY,
GUEST SUBJECT TO THE IMPORTANT TERMS AND CONDITI0NS APPEARING
NOTICE: THE ATTENT10N OF GUEST IS ESPECIALLY DIRECTED TO
CLAUSES 1, 4, AND 11 THROUGH 14, WHICH CONTAIN IMPORTANT
LIMITATI0NS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST
CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND
EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION, CHOICE OF
LAW, ARBITRAT10N AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS.
Ticket Contract p. 1. Paragraph 13-one of the paragraphs
referenced by the opening paragraphs-contains the following:
(1) limitations on the time a passenger has to bring claims
against defendant, id. ¶¶ 13(a), (b); (2)
a forum-selection clause, requiring all such claims against
defendant to be brought in the United States District Court
for the Southern District of Florida in Miami, id.
¶ 13(c); and (3) an arbitration clause, requiring all
claims, “other than for personal injury, illness or
death of a Guest, . . . relating to or in any way arising out
of or connected with this contract or Guest's
cruise” to be “referred to and resolved
exclusively by binding arbitration . . ., ”
id. ¶ 13(d).
filed its motion to dismiss, or in the alternative to
transfer venue on January 26, 2017. ECF No. 10. Plaintiff
filed a response in opposition on February 9, 2017, ECF No.
11, and defendant filed a reply on February 14, 2017. The
matter has been fully briefed and is now ripe for the
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss for “failure to state a claim upon which relief
can be granted.” When considering a Rule 12(b)(6)
motion to dismiss, the court must accept the plaintiff's
factual allegations as true and draw all reasonable
inferences in the plaintiff's favor. See E.I. du Pont
de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440
(4th Cir. 2011). But “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a
motion to dismiss, the court's task is limited to
determining whether the complaint states a “plausible
claim for relief.” Id. at 679. Although Rule
8(a)(2) requires only a “short and plain statement of
the claim showing that the pleader is entitled to relief,
” “a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is ...