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March 28, 2001


The opinion of the court was delivered by: Schwartz, District Judge.


This putative class action was commenced by two passengers who traveled on a Caribbean cruise with their families between December 20, 1997 and December 27, 1997. During the cruise, both named plaintiffs and some members of their entourage became ill. Subsequent to their return to the United States, they brought claims against defendants for negligence, breach of contract, and deceptive acts or practices in violation of New York and Florida consumer protection laws. Currently before the Court are: (i) defendants' motion for summary judgment; (ii) defendants' motion to dismiss plaintiffs' consumer protection claims under Fed. R.Civ.P. 12(b)(6) ("Rule 12(b)(6)") and Fed. R.Civ.P. 9(b) ("Rule 9(b)"); (iii) plaintiffs' motion for class certification; and (iv) plaintiffs' motion for a continuance to obtain additional discovery pursuant to Fed. R.Civ.P. 56(f) ("Rule 56(f)"). For the reasons set forth below, defendants' motions for summary judgment and to dismiss are granted, and plaintiffs' motions are denied.

I. Factual Background*fn1

A. The Parties and the Holiday Cruise

Plaintiffs Richard G. Petitt ("Petitt") and Jack Hirschhorn are individuals who are residents of the State of Florida. (Amended Compl. ("Compl.") ¶¶ 1-2.) Defendant Celebrity Cruises, Inc. ("Celebrity") is a corporation organized and existing under the laws of the State of Delaware, and purportedly maintains an office and conducts business in New York. (Id. ¶¶ 3-5.) At all times relevant to this action, Celebrity operated, managed, maintained and/or controlled the cruise ships known as the Galaxy, Century, Horizon, Mercury, and Zenith. (Id. ¶ 7; Reply Declaration of Oscar Pla dated Jan. 4, 2000 ("Pla Rep. Decl.") ¶ 17, Ex. D.) Does 1 through 5, currently unknown to plaintiffs by name, are the owners or charterers of the above ships who are allegedly responsible for the injuries suffered by plaintiffs and the putative class members. (Compl. ¶¶ 8-9.)

Plaintiffs were passengers on a seven-day cruise on the Galaxy cruise ship, which departed from San Juan, Puerto Rico on December 20, 1997, stopped at several islands in the Caribbean Sea, and returned to San Juan on December 27, 1997 (the "Holiday Cruise").*fn2 (Celebrity Cruises, Inc.'s Rule 56.1 Statement ("Def.56.1") ¶ 1; Plaintiffs' Response to Defendant's Rule 56.1 Statement ("Pl.56.1") ¶ 1.) The Holiday Cruise had 1,934 passengers and approximately 880 crew members. (Def. 56.1 ¶¶ 90-91; Pl.56.1 ¶¶ 90-91.)

B. The Petitt Group and Their Travel to the Cruise

The Petitt Group of travelers included nine people: (1) Petitt; (2) Petitt's wife, Barbara Petitt ("Barbara"); (3) Petitt's father, Richard Petitt, Sr. ("Petitt Sr."); (4) Petitt's mother, Ruth Petitt; (5) Petitt's son, Craig Petitt ("Craig"); (6) Craig's fiancee, Colleen Nodes; (7) Petitt's other son, Brian Petitt ("Brian"); (8) Brian's fiancee, Lorraine Cantor ("Lorraine"); and (9) Petitt's daughter, Collen Petitt ("daughter Colleen"). (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) On December 20, 1997, a limousine picked up all members of the Petitt Group except for Brian and Lorraine from Petitt's home in Stuart, Florida and drove them to Fort Lauderdale Airport. The limousine ride took about one-and-one-half hours. (Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.) That same day, those seven members flew from Fort Lauderdale to San Juan on a Pan Am/Carnival Airlines flight, which was delayed for a considerable amount of time before take-off. The aircraft was completely full of passengers and only had a single aisle. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) Upon arrival at San Juan Airport, the seven members were led to a shuttle bus operated by Celebrity, which drove them to the pier along with other passengers. In the late afternoon or early evening, after presenting tickets to Celebrity personnel, they boarded the ship by means of a gangway, which had a handrail. (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6.) The other two members of the Petitt Group, Brian and Lorraine, reside in New Jersey; they traveled to San Juan from a New York area airport on an American Airlines flight. They met the remaining members of the Group on board the Galaxy. (Def. 56.1 ¶ 7; Pl. 56.1 ¶ 7.)

The seven members of the Petitt Group who traveled from Florida did not receive, before the ship departed San Juan on December 20, the twelve pieces of luggage which they had checked with the airline in Fort Lauderdale. Petitt made repeated inquiries concerning the missing luggage to Celebrity's on-board staff, and eventually learned that baggage handlers had removed their luggage, as well 15 pieces owned by other cruise passengers, from the plane before take-off in Fort Lauderdale because the aircraft was overweight. The Petitt Group's luggage was delivered to them on the morning of December 23, shortly after the ship had docked in Barbados. (Def. 56.1 ¶ 15; Pl. 56.1 ¶ 15.) During the approximately three days that seven members of the Petitt Group did not have their luggage, they coped with the situation in various ways, including:

(i) Brian and Lorraine, who received their luggage timely, shared their belongings. Lorraine testified that she shared "my underwear, all my clothes. I offered anything to help," including "combs, brushes, toothbrushes, and things of that nature." Brian testified that he loaned a shirt and socks to his father, and loaned numerous items to Craig, who is the same size;
(ii) For a "formal dinner" on December 22, the men borrowed tuxedos and the women borrowed dresses from Celebrity crew members;
(iii) Celebrity gave each passenger who lost luggage a credit of $50 to spend in the Galaxy's shops, and gave each an extra-large T-shirt to use as pajamas;
(iv) At least some of the seven washed their underwear or other clothing and hung them out to dry overnight. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17.)

C. The Petitt Group's Daily Activities While on the Cruise

1. Evening of December 20

On the evening of December 20, 1997, all nine members of the Petitt Group ate dinner together. They also had dinner together each subsequent night during the cruise, with the following exceptions: (i) on December 23, Barbara left dinner early because she was not feeling well; (ii) on December 25, Petitt Sr. left dinner early because he was not feeling well; and (iii) on December 26, Petitt Sr., and possibly Ruth Petitt, did not attend dinner because Petitt Sr. was not feeling well.*fn3 (Def. 56.1 ¶ 18; Pl. 56.1 ¶ 18.) After dinner, Craig and Colleen Nodes went to the ship's casino; they both enjoy playing craps and blackjack in particular. (Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21.)

2. December 21

On December 21, 1997, the two older couples — Petitt, Barbara, Petitt Sr., and Ruth Petitt — ate breakfast together; the five younger members of the Petitt Group slept later and had brunch, probably together. This was the usual pattern for breakfast or brunch throughout the cruise. (Def. 56.1 ¶ 23; Pl. 56.1 ¶ 23.) That day, the ship stopped near a private island off the coast of the Dominican Republic. All nine members of the Petitt Group ate a buffet lunch on the island; then the five younger members took a ferry to the mainland of the Dominican Republic where they went on a long horseback riding excursion. (Def. 56.1 ¶ 24; Pl. 56.1 ¶ 24.) Later that evening, all members of the group except Brian and Lorraine attended a show in the ship's theater, which was crowded. The entire Petitt Group then subsequently went to the casino, which was also crowded; at least Craig and Brian played craps. (Def. 56.1 ¶¶ 25-26; Pl. 56.1 ¶¶ 25-26.)

3. December 22

On December 22, 1997, the Galaxy was at sea. Petitt and Craig did some skeet shooting off the stern of the ship, using a rifle supplied by the ship and used by other passengers. Craig played basketball with other passengers who were not part of the Petitt Group. He also played shuffleboard once or twice during the cruise, with other members of the Petitt Group, but cannot recall on what days. In the afternoon, some members of the Group sat near the ship's pool; the pool area was extremely crowded and it was difficult to find a chair. Barbara began to feel ill that afternoon. (Def. 56.1 ¶¶ 27-29; Pl. 56.1 ¶¶ 27-29.)

After dinner that evening, the entire Petitt Group, with the possible exception of Brian and Lorraine, attended a show in the theater, which was crowded. At least six members of the Group — Craig, Colleen Nodes, Brian, Lorraine, Petitt and Barbara — then went to the casino, which was crowded. Craig, Colleen Nodes and Brian played craps for approximately two hours; as is common in craps, they both rolled the dice themselves and bet on other players' rolls. (Def. 56.1 ¶¶ 29-31; Pl. 56.1 ¶¶ 29-31.)

4. December 23

On December 23, 1997, the ship was docked at Barbados. Petitt and his parents went on a shore excursion, but Barbara did not go because she was not feeling well. Craig, Colleen Nodes, Brian and Lorraine went shopping and ate lunch on the island, and Petitt took daughter Colleen shopping in the afternoon in downtown Barbados. (Def. 56.1 ¶¶ 32-34; Pl. 56.1 ¶¶ 32-34.) After dinner that evening, Craig, Colleen Nodes, Brian, Lorraine, and Petitt went to the casino; Craig played blackjack and craps, and Petitt joined him for craps at one point. (Def. 56.1 ¶ 35; Pl. 56.1 ¶ 35.)

5. December 24

6. December 25

On December 25, 1997, Christmas Day, the Galaxy was docked at Antigua. Craig, Colleen Nodes, and daughter Colleen went onto the island; Colleen Nodes telephoned her parents from a public telephone on the island to wish them a Merry Christmas. Many other passengers used the island's public telephones because they were less expensive than the ship's phones, and there were lines of passengers waiting for them. (Def. 56.1 ¶ 38; Pl. 56.1 ¶ 38.) Brian and Lorraine went to a beach on Antigua, had lunch on the island, and returned to the Galaxy for dinner. Barbara, daughter Colleen, Petitt, and Ruth Petitt went shopping on the island. (Def. 56.1 ¶¶ 39-40; Pl. 56.1 ¶¶ 39-40.)

7. December 26

On December 26, 1997, the ship was docked at St. Thomas. Petitt, Barbara, and Ruth Petitt shopped for a ring for Petitt Sr. to give to Ruth Petitt on their fiftieth wedding anniversary. Craig and Colleen Nodes walked around the island; they canceled a snorkeling trip because they both had cold symptoms. Brian and Lorraine went shopping on the island. (Def. 56.1 ¶¶ 41-43; Pl. 56.1 ¶¶ 41-43.)

After dinner, Craig, Colleen Nodes, Brian, Lorraine, and daughter Colleen went to the casino, where at least Colleen Nodes played craps. The casino was crowded. Later that evening, the members of the Petitt Group packed their bags in preparation for the end of the cruise and their departure from the ship the next day. (Def. 56.1 ¶¶ 44-45; Pl. 56.1 ¶¶ 44-45.)

8. December 27

On December 27, 1997, the ship had returned to San Juan and was docked there. Brian and Lorraine left the ship before the others to catch their return flight to the New York area. The others stayed on the ship for more hours because they had a later flight and ...

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