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Gibson-Dalton v. Carnival Corp. & PLC

United States District Court, D. South Carolina, Charleston Division

September 7, 2017

CHERYL GIBSON-DALTON, Plaintiff,
v.
CARNIVAL CORP. & PLC d/b/a CARNIVAL CRUISE LINE, Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This 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 defendant's motion.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff's 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.

         Defendant 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. ¶ 14.

         Defendant 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 follows:

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 BELOW.
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).

         Defendant 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 court's review.

         II. STANDARDS

         A. Motion to Dismiss

         Under 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 ...


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