ALAN S. GOLD, District Judge.
This cause came before the Court on Motions for Summary Judgment by Defendant. Carnival Cruise Lines ("Carnival") [DE 17]. and by Defendant. Steiner Management Services, LLC ("Steiner") [DE 16]. The Court has reviewed the parties' written submissions, the record, and applicable law.
This case arises from a slip and fail in the spa area of a cruise ship. Plaintiff, Kimberly Sorgenfrei ("Sorgenfrei"), slipped and fell in the shower on the cruise ship, Carnival Conquest ("Conquest"), on April 9, 2004. (See Plaintiff's Opposition to Defendants' Motions for Summary Judgment ("Plaintiff's Opp.") [DE 25-1] at 2; see Carnival's Motion for Summary Judgment ("Carnival's Mot.") [DE 17] at 2). Prior to boarding the Conquest, Sorgenfrei received a Passenger Ticket Contract ("the Contract"). (See Carnival's Mot. at 2; see Steiner's Motion for Summary Judgment ("Steiner's Mot.") [DE 16] at 2).
The first page of the Contract contains the following notice in capital letters and bold print:
(See Carnival's Mot., Ex. C; see Steiner's Mot., Ex. C).
As noted on the opening page, the Contract contained certain limitations information. Paragraph 14(a) of the contract provides that:
(See Carnival's Mot., Ex. C; see Steiner's Mot., Ex. C). The Contract also contained a forum selection clause, found at Paragraph 15:
(See Carnival's Mot., Ex. C; see Steiner's Mot., Ex. C). Finally, the Contract contained a "Passenger Ticket Contract Acknowledgment," which Sorgenfrei completed, signed, and presented to the ship upon boarding. (See Carnival's Mot., Ex. D; see Steiner's Mot., Ex. D). Sorgenfrei signed the form directly below the lines which read, "[b]y signing below, all guests acknowledge that they have received, read, and agree to the Terms and Conditions of the Guest Ticket Contract." (See id.).
Sorgenfrei sent a letter to Carnival on May 3, 2004, advising Carnival that she had retained counsel to represent her regarding her injuries sustained on the Conquest. (See Plaintiff's Opp., Ex. C). Carnival responded in July, 2004, with a letter stating that Steiner Management is an independent contractor responsible for the maintenance of the spa area where Sorgenfrei was injured, and that Sorgenfrei should contact Steiner directly. (See Plaintiff's Opp., Ex. D). On April 11, 2005, Sorgenfrei filed suit against Defendants in the Civil District Court for the Parish of Orleans in the State of Louisiana, Case No.: 2005-04784. (See Carnival's Mot. at 3-4; see Steiner's Mot. at 3).
On August 3, 2005, counsel for Carnival sent a letter to Sorgenfrei's counsel which stated, in relevant part:
The pertinent Terms and Conditions portion of the ticket contract reads:
(Defendants' Joint Reply ("Defendants' Reply") [DE 34-2] at 1-2).
On January 23, 2008, Carnival filed a responsive pleading in the state court action, raising the issue of improper venue; Steiner filed a similar pleading in November, 2008. (See id.). On November 12, 2008 and February 10, 2009, Carnival and Steiner, respectively, were dismissed without prejudice in the state court action. (See Carnival's Mot., Ex. B; see Steiner's Mot., Ex. B). On October 28, 2009, Sorgenfrei filed suit against Carnival and Steiner in this Court. (See Complaint [DE 1]). Defendants move for summary judgment in their favor on the grounds that Sorgenfrei's claims are barred by the Contract's one-year statute of limitations.
Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997), and "must resolve all reasonable doubts about the facts in favor of the non movant." United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990).
"By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise property supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will property preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505. Likewise, a dispute about a material fact is a "genuine" issue "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"For factual issues to be considered genuine, they must have a real basis in the record . . . mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (citations omitted). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper "against a party who fails to make a showing sufficient to establish the
As a threshold matter, the Court notes that this case is governed by maritime law. As the Eleventh Circuit has explained, "the substantive law applicable to this action, which involves an alleged tort committed aboard a ship sailing in navigable waters, is the general maritime law, the rules of which are developed by the federal courts." Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir.1989) (citing Kermarec v. Compagnie Generale Transatiantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959)).
Sorgenfrei attempts to apply Louisiana's state statute of limitations and state law regarding limitations tolling provisions, but this effort tails. Sorgenfrei cites no legal authority to support her position that Louisiana law should apply, and indeed, the law is well settled that maritime law governs personal injury actions sustained aboard cruise ships. See, e.g., Keefe, 867 F.2d at 1321; Kermarec v. Compagnie, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (U.S. 1959) ("Kermarec was injured aboard a ship upon navigable waters. It was there that the conduct of which he complained occurred. The legal rights and liabilities arising from that conduct were therefore within the full reach of the admiralty jurisdiction and measurable by the standards of maritime law."); Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 73 (6th Cir. Mich.1990) ("As the accident in this case occurred in navigable waters, federal maritime law, rather than state law, governs the resolution of this controversy."); Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 766 (D.C.Cir.1992) ("The Milanoviches' cruise ticket is a maritime contract and thus the substantive law to be applied in this case is the general federal maritime law, including maritime choice-of-law rules."). Accordingly, federal maritime law governs this action.
Congress has authorized cruise lines to shorten the limitations period on personal injury actions pursuant to 46 U.S.C. § 30508, which provides:
"Courts will enforce such a limitation if the cruise ticket provided the passenger with reasonably adequate notice that the limit existed and formed part of the passenger contract." Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1566 (11th Cir.1990).
Sorgenfrei does not argue that the limitations notice was unreasonable, and indeed, a review of the ticket contract reveals that its provisions comport with
Id.
In this case, the front page of the contract reads,
(Carnival's Mot., Ex. C; see Steiner's Mot., Ex. C). Paragraph 14(a) of the contract provides that:
The front page of the contract puts a cruise passenger on notice that she should review the entire contract, and even points out that important limitations on rights are contained within the contract. In accordance with Nash, then, because the notice of the one-year limitations period is reasonable, this Court will enforce the limitation. Sorgenfrei was required to file suit in this action within one year of her injury, pursuant to the limitations period contained in the ticket contract. Because she filed her lawsuit more than five years after the incident, Sorgenfrei's lawsuit is timebarred, and Defendants are entitled to summary judgment as a matter of law.
Sorgenfrei argues that even if the limitations period had passed when she filed her lawsuit, she should nonetheless be permitted to move forward in this action on the ground of equitable tolling. Sorgenfrei relies on the Eleventh Circuits decision in Booth v. Carnival Corp., 522 F.3d 1148 (11th Cir.2008) in support of her position.
In Booth, the plaintiff was the estate of an individual who was killed in a fatal scuba diving accident while on a cruise. Id. at 1149. The decedent's cruise ticket contained a one-year limitations period, as well as a forum selection clause that required that suit be brought in federal court in the Southern District of Florida, or, if the federal court lacked subject matter jurisdiction, suit was to be brought in the state courts of Miami-Dade County, Florida. Id.
Plaintiff filed his lawsuit in state court in Miami-Dade County on July 5, 2005, just 16 days before the limitations period would expire. Id. On December 29, 2005, while the state case was pending, but after the one-year limitation period had run, plaintiff filed an action identical to the state court case in federal court, which was administratively closed pending the outcome of the state case. Id. at 1149-50. The state court initially denied defendant's motion to dismiss on the ground that it had waived its venue defense, but on appeal the defendant prevailed, and the suit was dismissed for improper venue. Id. at 1150. The district court case was then re-opened, and the defendant moved to dismiss because the statute of limitations had run. Id. The district court denied the motion, and an interlocutory appeal followed. Id.
On appeal, the Eleventh Circuit held that the suit would not be dismissed on limitations grounds, as principles of equitable tolling were applicable. Id. The court began by noting that "[t]he Supreme Court has made clear that tolling is an extraordinary remedy which should be extended only sparingly," and that "[t]he burden is on the plaintiff to show that equitable tolling is warranted." Id. (citing Justice v. United States, 6 F.3d 1474, 1479 (11th Cir.1993)). Notwithstanding the burden and rarity of equitable "tolling, the court explained that lolling may be appropriate when a plaintiff timely files a technically defective pleading and in all other respects acts with the proper diligence . . . which . . . statutes of limitation were intended to insure." Id. (internal quotation marks omitted).
The court found various factors weighed in favor of equitable tolling under the specific circumstances of the case. First, the plaintiff filed the suit in a court of competent jurisdiction. Id. at 1152. The court noted that had the plaintiff filed the lawsuit in a court without jurisdiction, the statute of limitations would not have been tolled. Id. The court also pointed out that although the plaintiff filed his federal suit after the limitations period had expired, the defendant was well aware during the limitations period that the plaintiff was diligently pursuing his cause of action against them. Id. The court reasoned that
Id. The court further found that equitable tolling was warranted because the plaintiff had pursued his claim "with proper diligence." Id. at 1153. At the district court level, the court noted that the improper venue defense had been waived by defendant. Booth v. Carnival Corporation, 510 F.Supp.2d 985, 990 (S.D.Fla.2007), aff'd, 522 F.3d 1148 (11th Cir.2008). When Carnival was served with the state court complaint, it requested two extension of time in which to respond, which placed Carnival's response well after the one-year limitations period had expired. Id. When Carnival did respond to Booth's complaint it filed a motion to dismiss but did not raise improper venue as a defense. Carnival then filed an amended motion to dismiss, in which it raised the venue defense. Booth then contacted Carnival, and offered to voluntarily dismiss the state court lawsuit and refile in federal court, if Carnival would waive Its statute of limitations defense. Carnival refused to waive the limitations defense.
Both the district court and the court of appeals determined that equitable tolling should apply, as Booth had a "reasonable (though eventually erroneous) belief that Carnival had waived [its venue] defense." Booth, 522 F.3d at 1153. The court determined that the plaintiff had not slept on his claim, and upheld the district court's determination to equitably toll the parallel federal action during the pendency of the state suit. Id.
Sorgenfrei claims that the facts of her case mandate equitable tolling under the principles of Booth. However, numerous factual differences exist between Booth and the instant case to render equitable tolling inappropriate. Here, Sorgenfrei filed her lawsuit in state court in Louisiana on April 11, 2005, the last possible day before the statute of limitations barred the action.
Carnival and Steiner sought dismissals in the state action on venue grounds on January 23, 2008, and November, 2008, respectively. Again, Sorgenfrei took no action to properly file the suit in federal court. On November 12, 2008, Carnival obtained dismissal of the case against it, and on February 10, 2009, Steiner obtained a dismissal of the state action. Sorgenfrei then waited until October, 2010, to file her lawsuit against Carnival and Steiner in federal court in the Southern District of Florida.
In both Borton and Crist, the plaintiffs improperly filed suit against Carnival in state courts. The plaintiffs were made aware of the forum selection clause in the ticket contract that required the cases be filed in federal court in the Southern District of Florida, but did not file a parallel action, as did the plaintiff in Booth. Instead, the plaintiffs waited until the state actions were resolved in Carnival's favor based on the valid forum selection clause, and then filed suit in federal court, well past the one-year limitations periods. The district court found in each case that the plaintiff had not been placed in an inequitable situation, as was the case in Booth. Instead, the district courts found that plaintiffs had slept on their rights and failed to diligently pursue their claims. Under those circumstances, equitable tolling was not warranted, and both cases were dismissed as time-barred.
The facts of this case mandate the same result. The manner in which Sorgenfrei pursued her claims against Carnival and Steiner is the antithesis of diligent. The notice of the one-year limitations period and forum selection clause were part of her ticket contract, and were reasonable under Eleventh Circuit standards. Sorgenfrei filed suit on the last possible day within the limitations period in the wrong court, in the wrong state. After being notified by Carnival that it did not intend to waive its venue defense, Sorgenfrei did nothing. After the defendants moved for dismissal based on the venue defense, Sorgenfrei did nothing. After the state court cases were dismissed based on venue, Sorgenfrei did nothing for almost a year. Having slept on her rights, Sorgenfrei may not avail herself of the extraordinary remedy of equitable tolling.
Because no material facts are in dispute in this case, because Sorgenfrei's suit is time-barred by the ticket contract's oneyear limitations period, and because equitable tolling does not apply in this case, both Carnival and Steiner are entitled to summary judgment as a matter of law. Accordingly, it is hereby