United States District Court, E.D. New York
MYRNA SANTOS, as Executor of the Estate of FRANKLIN CRUZ SANTOS, Deceased,
COSTA CRUISE LINES, INC., CARNIVAL CRUISE LINES, INC., and CARNIVAL PLC, Defendants and MYRNA SANTOS, Individually, Plaintiff,
[Copyrighted Material Omitted]
For Myrna Santos, as Executor of the Estate of Franklin Cruz Santos, Deceased, and Myrna Santos, Individually, Plaintiff: Ilya Novofastovsky, Michael J. Rago, LEAD ATTORNEYS, Jennifer S. Heitman, Novo Law Firm, P.C., New York, NY.
For Costa Cruise Lines, Inc., Carnival PLC, Defendants: Susan Shin, LEAD ATTORNEY, Thad T. Dameris, LEAD ATTORNEY, PRO HAC VICE, Arnold & Porter LLP, New York, NY.
For Carnival Cruise Lines, Inc., Thad T. Dameris, LEAD ATTORNEY, PRO HAC VICE, Arnold & Porter LLP, Houston, TX.
MEMORANDUM AND ORDER
DORA L. IRIZARRY, United States District Judge.
Plaintiff Myrna Santos (" Plaintiff-Executor" ) is suing on her own behalf and on behalf of the estate of her deceased husband, Franklin Cruz Santos (" Plaintiff-Decedent" ) (collectively the " Plaintiffs" ) for injuries resulting allegedly from Defendants Costa Cruise Lines, Inc., Carnival Cruise Lines, Inc., and Carnival PLC's (collectively the " Defendants" ) negligence.(Compl. ¶ ¶ 5-7, 21-23.) Defendants move to dismiss for forum non conveniens because of a forum-selection clause in Plaintiffs' Passage Ticket Contract. (Defs.' Mem. 1-3.) In the alternative, Defendants move for judgment on the pleadings or to strike Plaintiffs' request for non-pecuniary and punitive damages. ( Id.) For the reasons set forth below, Defendants' motion to dismiss is granted for forum non conveniens.
Plaintiffs took a cruise on Defendant Costa Cruise Lines' ship, the Costa Favolosa. (Compl. attached to Notice of Removal ¶ ¶ 17-18, Dkt. Entry No. 1.) The Plaintiffs purchased their cruise tickets for travel aboard the Costa Favolosa on or about August 16, 2012. ( Id. ¶ 17.) Plaintiff-Decedent completed the online check-in for Plaintiffs on September 25, 2012. (Decl. of Ruben Perez ¶ 7; Decl. of Myrna Santos in Opp'n to Defs.' Mot. to Dismiss ¶ 7, Dkt. Entry No. 20; Mem. of Law in Opp'n to Defs' Mot. to Dismiss, Motion for Judgment on the Pleadings, or Motion to Strike (" Pls.' Opp'n" ) at 11, Dkt. Entry No. 19.) Plaintiffs' Passage Ticket Contract was sent via email to their travel agent, Cruisedeals, Inc. on October 5, 2012.(Decl. of Ruben Perez ¶ 8; Pls. Opp'n at 11.) Using their Passage Ticket Contract, which was needed to board the ship, Plaintiffs then departed for a one-week cruise from Genoa, Italy aboard the Costa Favolosa on November 4, 2012. (Compl. ¶ 18; Decl. of Ruben Perez ¶ 4.) On November 10, 2012, Plaintiff-Decedent suffered a heart attack while aboard the Costa Favolosa. (Compl. ¶ 19.) The Costa Favolosa 's
on board doctor diagnosed Plaintiff-Decedent with a heart attack and sent him to the nearest hospital, which was the General Hospital Dubrovnik in Croatia. ( Id. ¶ ¶ 20-21.) Plaintiff-Decedent died in the hospital on November 12, 2012. ( Id. ¶ 23.)
Plaintiffs brought suit in New York State Supreme Court, Queens County, on October 25, 2013 against Defendants alleging that Defendants' negligence caused Plaintiff-Decedent's death. ( Id. ¶ ¶ 26-27.) Specifically, Plaintiffs claim that Defendants acted negligently in failing to treat properly Plaintiff-Decedent aboard the Costa Favolosa and in bringing Plaintiff-Decedent to an inadequate hospital. ( Id. ¶ ¶ 23, 26 & 35.) Defendants removed the suit to this Court on April 30, 2014 and subsequently filed this Motion to Dismiss on August 11, 2014. (Notice of Removal, Dkt. Entry No. 1; Mot. to Dismiss, Dkt. Entry No. 15.) Defendants argue that the suit should be dismissed for forum non conveniens because a forum-selection clause in Plaintiffs' Passage Ticket Contract, which Plaintiffs agreed to be bound by when they used it to board the Costa Favolosa, designates that:
All claims, controversies, disputes, suits and matters of any kind whatsoever arising out of, concerned with or incident to any voyage that does not depart from, return to, or visit a U.S. port . . . shall be instituted in the courts of Genoa, Italy to the exclusion of the courts of any other country, state or nation. Italian law shall apply to any such proceedings.
Defs.' Mem. at 8; Decl. of Ruben Perez ¶ 4; Passage Ticket Contract attached as Exhibit 1 to Decl. of Ruben Perez at 7.) The Passage Ticket Contract also has a notice on the first page instructing:
IMPORTANT NOTICE! PLEASE READ THIS TICKET IN FULL UPON RECEIPT AS IT LIMITS YOUR LEGAL RIGHTS
In accepting this ticket, Guests agree to be bound by all of its terms including its limitations of the Guest's rights. Each Guest should carefully examine the ticket, especially the section noted " GENERAL CONDITIONS OF PASSAGE TICKET ...