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Balducci v. Louis Public Company Limited

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


June 4, 2008

NORMA BALDUCCI, PLAINTIFF,
v.
LOUIS PUBLIC COMPANY LIMITED AND GROUP VOYAGERS, INC., DEFENDANTS.
ANN HORRIGAN, PLAINTIFF,
v.
LOUIS PUBLIC COMPANY LIMITED AND GROUP VOYAGERS, INC., DEFENDANTS.
PATRICIA DEASTIS, PLAINTIFF,
v.
LOUIS PUBLIC COMPANY LIMITED AND GROUP VOYAGERS, INC., DEFENDANTS.
LAUREL KOSSOW, PLAINTIFF,
v.
LOUIS PUBLIC COMPANY LIMITED AND GROUP VOYAGERS, INC., DEFENDANTS.
LORRAINE CARPINO, PLAINTIFF,
v.
LOUIS PUBLIC COMPANY LIMITED AND GROUP VOYAGERS, INC., DEFENDANTS.
LUCY VITALIANO, PLAINTIFF,
v.
LOUIS PUBLIC COMPANY LIMITED AND GROUP VOYAGERS, INC., DEFENDANTS.

The opinion of the court was delivered by: Conner, Sr. D.J.

ECF CASE

OPINION AND ORDER

This action arises out of the grounding and sinking of a cruise ship, the M/S Sea Diamond, off the coast of the Greek island Santorini. Plaintiff Ann Horrigan was part of a tour group aboard the ship. Plaintiff brings suit against Louis Public Company Ltd. d/b/a Louis Hellenic Cruise Lines ("Louis"), the operator of the ship, and Group Voyagers, Inc. d/b/a Globus ("Voyagers"), the travel company that sold plaintiff a tour package that included the M/S Sea Diamond cruise. Defendant Voyagers now moves, pursuant to FED. R. CIV. P. 12(b)(6), for the dismissal of all claims against it. For the following reasons, the motion is converted to one for summary judgment.

BACKGROUND

Voyagers sold plaintiff an "escorted tour" package for travel from New York to Greece. (Complt. ¶ 11.) The tour package included a four-day cruise on the M/S Sea Diamond, during which the ship was to visit several Greek islands. (Id. ¶¶ 12-13.) Plaintiff also purchased insurance from Voyagers; the coverage included, but was not limited to, death and dismemberment, medical expenses and emergency evacuation. (Id. ¶ 14.)

The cruise aboard the M/S Sea Diamond was scheduled to run from April 3 to April 6, 2007. (Id. ¶ 13.) There were 1,547 passengers and crew on board. (Id. ¶ 27.) On April 5, the ship struck an underwater reef and began to sink. (Id.) Several of the ship's air-tight doors failed to work properly, which allowed water to flood the cabins. (Id. ¶ 1.) Although all but two of the passengers survived, the evacuation did not go well. (Id. ¶ 2.) According to plaintiff, it was "poorly planned and implemented," causing the passengers to endure "hours of chaos . . . and fear." (Id.) Many passengers were left "without life jackets, instructions or . . . proper egress from the ship." (Id.)

Plaintiff alleges that both the accident and the chaotic evacuation were caused by the negligence of Louis and its employees, and that Voyagers knew or should have known that Louis had a history of negligently operating the M/S Sea Diamond. (Id. ¶¶ 31-32, 37.)

DISCUSSION

I. Consideration of Documents Extrinsic to the Complaint

At the time Voyagers' motion was filed, plaintiff's case was one of thirty-six related cases pending before this Court. When the Court was on the verge of issuing this decision, most of the related cases were settled and plaintiff's counsel withdrew. New counsel appeared for plaintiff and requested permission to file a sur-reply brief in opposition to the present motion. The Court granted this request and also granted Voyagers permission to file a brief in response.

Plaintiff's sur-reply brief argues that the terms and conditions of her M/S Sea Diamond ticket, issued by Louis, make Greek and/or European Union law applicable to any dispute between those parties. (See Pl. Suppl. Mem. Law at 2-3.) She argues further that her contract with Voyagers incorporates the terms and conditions of the Louis contract, making Greek and/or European Union law applicable to her claims against Voyagers as well. (See id.) Plaintiff claims that under those bodies of law, Voyagers is vicariously liable for any negligence on the part of Louis. (See id. at 4-5.)

In support of this argument, plaintiff has submitted purported copies of the terms and conditions of the Voyagers and Louis contracts. Those documents were not attached as exhibits to the Complaint, and plaintiff has not amended the Complaint to include them. Nor has plaintiff argued that the documents are incorporated by reference; she simply asks us to base our resolution of the present motion on them. Voyagers argues persuasively that it would be inappropriate for us to do so.

In ruling on a motion to dismiss, the Court may consider the facts alleged in the complaint as well as any document attached as an exhibit to the complaint or incorporated by reference. See FED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996). To incorporate a document by reference, "the Complaint must make a clear, definite and substantial reference to the document[]." Thomas v. Westchester County Health Care Corp., 232 F. Supp. 2d 273, 275-76 (S.D.N.Y. 2002). "Mere discussion or limited quotation of a document in a complaint" is insufficient. R.H. Damon & Co. v. Softkey Software Prods., Inc., 811 F. Supp. 986, 989 & n.1 (S.D.N.Y. 1993).

However, the Court may base its decision on a document that is not properly incorporated by reference if the document is "integral" to the complaint and has been heavily relied on by the plaintiff in bringing suit. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) ("Although the amended complaint in this case does not incorporate the [a]greement, it relies heavily upon its terms and effect; therefore, the [a]greement is 'integral' to the complaint, and we consider its terms in deciding whether [plaintiff] can prove any set of facts that would entitle it to relief.") The Second Circuit has instructed that "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis in original). The plaintiff's notice or possession of the document is not enough. Id.

The most significant extrinsic document that plaintiff asks the Court to consider at this stage is a purported copy of the terms and conditions of her M/S Sea Diamond ticket.*fn1 (See Edelman Aff., Ex. 2.) The Complaint makes a brief, passing reference to the ticket:

Plaintiff was traveling as a member of a Globus escorted tour throughout her stay in Greece and during this cruise. Globus selected, purchased and held the tickets for each passenger, including plaintiff, for the Louis Cruise on the subject vessel, the M/S Sea Diamond, up until a short time before each passenger, including plaintiff, boarded the M/S Sea Diamond. (Complt. ¶ 12.) There is no mention at all of the terms and conditions of the ticket, let alone a "substantial discussion" of them. See Thomas, 232 F. Supp. 2d at 275-76. Although the paragraph in which the ticket is mentioned falls under the heading "FACTUAL ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION," the apparent purpose of that paragraph and the one preceding it is to establish plaintiff's reliance on Voyagers' expertise. (See Complt. ¶ 11 ("Plaintiff relied on Globus to escort her safely and to select reliable transportation . . . ."), ¶ 12 ("Plaintiff relied on Globus' assurances of its expertise and emphasis on safety . . . .").) There is no indication that plaintiff relied on the terms and conditions of the ticket in bringing suit or drafting the Complaint. See Chambers, 282 F.3d at 153. Rather, plaintiff relies on them now to advance a particular theory of liability. A single, passing reference to a document in a complaint does not allow a court to consider that document on a motion to dismiss.*fn2

Plaintiff also offers a purported copy of the terms and conditions of her contract with Voyagers. (See Edelman Aff., Ex. 1.) She argues that this contract incorporates the terms of the Louis contract, including the latter's choice of law provisions, thus making Voyagers vicariously liable for Louis's negligence. (See Pl. Suppl. Mem. Law at 2-5.) But the Complaint does not mention the Voyagers contract or its terms, even in passing, and there is no indication whatever that plaintiff relied on the document in bringing suit. The Court therefore will not consider it for purposes of deciding this motion.*fn3

We are also mindful of the fact that considering the Voyagers and Louis contracts now would raise at least two significant issues that the parties have briefed only minimally or not at all: the applicability and content of foreign law, and whether the parties have agreed to arbitrate this dispute. Given the procedural importance the latter issue, and the potentially outcome-determinative nature of the former, the Court would prefer to reserve decision until such time as they have both been fully briefed and, if necessary, supported by a factual record. Therefore, the Court will convert Voyagers' motion to dismiss into a motion for summary judgment under Rule 56. See FED. R. CIV. P. 12(d).


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