Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morty Hova v. Royal Caribbean Cruises Ltd and

April 30, 2013


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Morty Hova ("plaintiff" or "Hova") brings this negligence action for damages arising out of injuries allegedly sustained while on a cruise ship owned and operated by defendants Royal Caribbean Cruises Ltd. and Royal Caribbean International (collectively, "defendants" or "RCCL"). Presently before the Court is defendants' motion which seeks to dismiss plaintiff's Complaint as untimely under Federal Rule of Civil Procedure ("Rule") 12(b)(6) or, alternatively, to transfer this action to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the defendants' motion is DENIED.


The following facts are drawn from the allegations contained in the Complaint and are presumed true for purposes of the instant motion.

Defendants owned and operated a passenger cruise ship known as Grandeur of the Seas. (Compl. ¶¶ 4-7.) On May 22, 2010, while Hova was a passenger on Grandeur of the Seas, he tripped and fell over a small platform on the deck of the ship that was intended by defendants to be utilized as a stage. (Id. ¶ 8.) According to plaintiff, the "platform was negligently placed, designed, and colored so as to obscure its presence to passengers traversing the ship's deck." (Id. ¶ 9.) As a result, Hova states that he sustained "severe and serious personal injuries." (Id. ¶ 13.) Based on the above incident, Hova filed a Complaint on March 20, 2012 which asserts claims of negligence under federal maritime law as well as New York state common law. (Id. ¶ 14.)


I. Motion to Dismiss

A. Rule 12(b)(6)*fn1

It is well-settled that "[a] motion to dismiss on statute of limitations grounds is properly viewed as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted." Jowers v. Lakeside Family & Children's Servs., 435 F. Supp. 2d 280, 283 (S.D.N.Y. 2006) (internal quotation marks and citation omitted); accord Ghartey v. St John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). "An action should be dismissed pursuant to Rule 12(b)(6) where documents properly considered on a motion to dismiss reveal that the action is time barred." Noboa v. MSC Crociere S.P.A., 2009 WL 1227451, at *2 (S.D.N.Y. May 5, 2009). While a court generally may only consider facts stated in the complaint in deciding a motion to dismiss under Rule 12(b)(6), "[d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Even if a document is not attached or incorporated by reference, it may be considered if the plaintiff "either possessed or knew about and upon which [he or she] relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).

Defendants argue that because plaintiff's cruise ticket contract contains a one year limitation clause for personal injury claims, the Complaint, which was filed more than one year after Hova's injury, should be dismissed as time-barred. The entire set of facts relied on by defendants, however, stem from assertions and documents outside the four corners of the Complaint. These materials include the Affidavit of David Banciella ("Banciella Aff.") and two exhibits attached thereto, a "Cruise/CruiseTour Ticket Contract" (hereafter, "Ticket Contract"), and a "Charge Account & Cruise Ticket" (hereafter, "Cruise Ticket"). Defendants proffer three arguments as to why the Court may properly consider such evidence in deciding the instant motion to dismiss without treating the motion as one for summary judgment. None of the arguments advanced by defendants is persuasive.

First, defendants maintain that "[i]t is well established that when evaluating a motion to dismiss a complaint based on the existence of a forum selection clause, the court may consider materials outside the pleadings like affidavits and/or declarations." (Defs.' Mem. at 5.) While this contention is for the most part accurate,*fn2 what defendants overlook is that their motion does not request dismissal pursuant to the existence of a forum selection clause. Therefore, this contention and the cases relied on by defendants have no bearing on what the Court may consider in deciding the instant motion, made pursuant to Rule 12(b)(6).

Second, defendants claim that Noboa supports the proposition that the Cruise Ticket may be considered at the motion to dismiss stage. (Defs.' Mem. at 5.) Such a blanket statement, however, is out-of-sync with the specific findings of that case. In Noboa, the court concluded that it could consider, inter alia, the "Passenger Ticket/Contract" in deciding the defendants' Rule 12(b)(6) motion because the ticket was "specifically referred to in the complaint" and was "within plaintiffs' possession when the complaint was filed." Noboa, 2009 WL 1227451, at *3. In this action, the Ticket Contract was not mentioned in the Complaint. Nor is there any reason to believe that it was relied upon by Hova in drafting his Complaint. Thus, the case-specific finding in Noboa is not applicable under the present circumstances.*fn3

Finally, defendants allege that the Ticket Contract may be considered since they have incorporated it into their Answer. This contention misapplies the applicable standard. Documents which are incorporated by reference in the complaint may be considered under a Rule 12(b)(6) motion, not documents incorporated by reference in an answer. Therefore, the fact that defendants reference the Ticket Contract in its Answer has no significance on what documents the Court may properly consider.

Because the entirety of defendants' Rule 12(b)(6) motion to dismiss is predicated on factual assertions and documents that the Court may not consider, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.