Cynthia Lynn Ford v. Carnival Corporation

O [6] 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA [9] CYNTHIA LYNN FORD, et al., ) Case No. 20-cv-6226 DDP (AFMx) [10] ) 11 Plaintiffs, ) ORDER GRANTING IN PART, 12 ) DENYING IN PART, DEFENDANTS’ v. ) MOTION TO DISMISS 13 ) 14 ) [Dkts. 27, 31, 34] ) 15 ) 16 CARNIVAL CORPORATION, et al., ) ) 17 Defendants. ) [18] 19 Presently before the court are Defendants’ Motions to Dismiss. (Dkts. 27, 31, 34.) 20 H aving considered the submissions of the par ties and heard oral argument, the court 21 grants Defendants’ motions in part, denies in part, and adopts the following Order. 22 I. BACKGROUND 23 Twenty-three individual plaintiffs bring this putative class action against 24 D e f e n d a nts Carnival Corporation, a Panama corporation headquartered in Miami, 25 Florida, Carnival PLC, a Wales corporation headquartered in Miami, Florida 26 (collectively, (“Carnival”)), and Princess Crui se Lines LTD (“Princess”), a Bermuda 27 corporation headquartered in Santa Clarita, California (collectively, (“Defendants”)). negligence, gross negligence, negligent infliction of emotional distress, and intentional [1] infliction of emotional distress based on Defendants’ response to the COVID-19 [2] pandemic on the cruise ship the Grand Princess. (See FAC.) According to Plaintiffs, [3] Carnival and Princess are alter egos; Carnival “exerts control and domination over [4] Princess’s business and day-to-day operations” and on this basis, Plaintiffs seek to hold [5] Carnival, Princess’s parent company, liable in tort. (Id. ¶¶ 28-38.) [6] Plaintiffs were passengers aboard the cruise ship Grand Princess from February 11, [7] 2020 to February 21, 2020 on a roundtrip voyage from San Francisco to Mexico. (Id. ¶ 95.) [8] Plaintiffs allege that prior to their onboarding, Defendants were aware of the unique [9] 10 risks created by the cruise ship environment and had experienced COVID-19 outbreaks 11 on other vessels. (Id. ¶¶ 72-94, 95.) Plaintiffs allege that Defendants boarded passengers 12 without conducting “any effective medical screenings for passengers and without 13 providing any additional information about best practices to mitigate or prevent the 14 spread of COVID-19.” (Id.) Defendants “did not alter their on-ship protocols, event 15 itineraries, or cleaning or disinfectant practices,” nor “provide passengers . . . any 16 information about COVID-19.” (Id. ¶ 96.) Plaintiffs further allege that on February 19, 17 2020, Defendants “became aware of at least one passenger suffering from COVID-19 18 symptoms onboard the [Grand Princess]” but did not alert Plaintiffs nor “put into place 19 any quarantine requirements” or other similar protocols. (Id. ¶ 97.) 20 On February 21, 2020, the Grand Princess returned to San Francisco and all but four 21 plaintiffs disembarked. (Id. ¶ 101.) On February 25, 2020, Defendants “emailed 22 passengers that had traveled on the [Grand Princess] trip to Mexico alerting them that 23 some of their fellow travelers had suffered from COVID-19 and that they may have been 24 exposed to COVID-19.” (Id. ¶ 102.) Plaintiffs allege that “[a]t least 100 passengers who 25 traveled on board the [Grand Princess] [ ] tested positive for COVID-19, and at least two 26 passengers . . . died after disembarking.” (Id. ¶ 100.) Plaintiffs allege that if they “had 27 known the serious and actual risks of contracting or spreading COVID-19,” Plaintiffs would not have sailed, or “at a minimum, if they had been made aware after [1] embarkation of the growing and continued risk, they would have disembarked from the [2] ship at one of its ports of call.” (Id. ¶ 110.) [3] Plaintiffs allege that as a result of Defendants’ negligent response to COVID-19 on [4] the Grand Princess, Plaintiffs were injured. Five Plaintiffs tested positive for COVID-19 [5] and allege that they suffered symptoms from the disease.1 (Id. ¶¶ 131, 132, 135, 137, 138.) [6] Ten Plaintiffs allege symptoms associated with COVID-19 but do not allege a positive [7] diagnosis.2 (Id. ¶¶ 133, 134, 136, 139-45.) Eight Plaintiffs do not allege any symptoms [8] associated with COVID-19 nor a positive diagnosis, but instead appear to allege trauma [9] 10 from the “direct exposure to COVID-19, the risk that they would contract the virus, and 11 the reasonable apprehension associated with that risk”.3 (See id. ¶¶ 130-47.) 12 Defendants presently move to dismiss the First Amended Complaint under Rule 13 12(b)(6). (See dkts. 27, 31, 34.) 14 II. LEGAL STANDARD 15 A complaint will survive a motion to dismiss when it contains “sufficient factual 16 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 18 When considering a Rule 12(b)(6) motion, a court must “accept as true all allegations of 19 material fact and must construe those facts in the light most favorable to the plaintiff.” 20 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include 21 “detailed factual allegations,” it must offer “more than an unadorned, the-defendant22 [23] 1 Plaintiffs Cynthia Lynn Ford, James David Arthur Ford, Ruben Sandoval, Larry H. 24 Fisher, and Rita Fisher. (FAC ¶¶ 131, 132, 135, 137, 138.) 2 Plaintiffs Carole Kealy, Kelly Sandoval, Sarah Davies, David Gonsalves, Mary Ann [25] Gonsalves, Tracie Ling, Peggie Losie, Marie Rivera, Paul Rivera, and Judith Shaterian. 26 (Id. ¶¶ 133, 134, 136, 139-45.) 3 Plaintiffs Stephen Collins, Tracy Emerald, Brian Losie, John Miller, Renate Miller, [27] Kenneth Prag, John Shaterian, and Kurt Emerald. (See FAC.) unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 . Conclusory allegations or [1] allegations that are no more than a statement of a legal conclusion “are not entitled to the [2] assumption of truth.” Id. at 679 . In other words, a pleading that merely offers “labels [3] and conclusions,” a “formulaic recitation of the elements,” or “naked assertions” will not [4] be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and [5] internal quotation marks omitted). [6] III. DISCUSSION [8] A. Negligence, Gross Negligence, and Negligent Infliction of Emotional Distress Defendants move to dismiss Plaintiffs’ negligence claims on three grounds. First, [9] 10 Defendants argue that Plaintiffs have not plausibly alleged actual or constructive 11 knowledge that sailing on February 11, 2020 was a risk creating condition or that 12 Defendants’ measures to contain an outbreak during the voyage would prove to be 13 inadequate. (Dkt. 31, Carnival Mot. at 9-13.) Second, Defendants argue that Plaintiffs 14 have failed to allege “concrete, harmful symptoms of COVID-19.” (Id. at 13.) Third, 15 Defendants argue that Plaintiffs have failed to allege causation. (Id. at 17.) 16 i. Duty of Care 17 Plaintiffs’ claims are claims of maritime torts. (See FAC.) The “sufficiency of the 18 complaint is governed by the general maritime law of the United States.” Stacy v. Rederiet 19 Otto Danielsen, A.S., 609 F.3d 1033, 1035 (9th Cir. 2010) (citing Chan v. Soc’y Expeditions, 20 Inc., 39 F.3d 1398 , 1409 (9th Cir. 1994)). For claims of negligence, Plaintiffs must allege 21 duty, breach, causation, and damages. Samuels v. Holland Am. Line-USA Inc., 656 F.3d 22 948, 953 (9th Cir. 2011). “‘[T]he owner of a ship in navigable waters owes to all who are 23 on board . . . the duty of exercising reasonable care under the circumstances of each 24 case.’” Id. (quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 , 632 25 (1959)). “Where the condition constituting the basis of the plaintiff’s claim is not unique 26 to the maritime context, a carrier must have ‘actual or constructive notice of the risk27 creating condition’ before it can be held liable.” Id. (quoting Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989)). In contrast, where the condition is peculiar to [1] the maritime context, a heightened duty of care is required. See Catalina Cruises v. Luna, [2] 137 F.3d 1422 , 1425-26 (9th Cir. 1998); see also Rainey v. Paquet Cruises, Inc., 709 F.2d 169 , [3] 172 (2d Cir. 1983) (“The extent to which the circumstances surrounding maritime travel [4] are different from those encountered in daily life and involve more danger to the [5] passenger, will determine how high a degree of care is reasonable in each case.”). [6] Plaintiffs argue that Defendants were subject to a heightened duty of care because [7] “[c]ruise ships create a particular risk of viral outbreak . . . .” (Dkt. 37, Opp. at 5.) [8] Plaintiffs acknowledge that the “risk of exposing individuals to COVID-19 is not unique [9] 10 to cruise ships,” but contend that “the increased risk of exposing individuals to COVID-19 11 is unique to the maritime context.” (Id. at 5). However, the increased risk of exposure to 12 COVID-19 occurs in any setting where individuals are in close proximity and engage in 13 prolonged interpersonal contact—such increased risk, which certainly exists in maritime 14 travel, is not “uniquely associated with maritime travel.” See Samuels, 656 F.3d at 954 15 (emphasis added). Plaintiffs’ allegations support this conclusion. Plaintiffs allege that 16 “[s]tudies tend to show that the virus can be transmitted through person-to-person 17 contact, but also through air flow, and on surfaces.” (FAC ¶ 57.) “[R]ecent studies have 18 indicated that spaces with[] poor or limited ventilation can cause greater accumulation of 19 the airborne virus because of the presence of aerosolized droplets that can cause 20 transmission.” (Id.) Accordingly, circumstances which increase the risk of COVID-19 21 transmission also exist, for example, in nursing homes, classrooms, and on many forms 22 of public transportation such as commuter trains, buses, and airplanes. Thus, the alleged 23 risk-creating condition is not unique to the maritime context. 24 Because Plaintiffs’ allegations are insufficient to plausibly establish a unique risk 25 creating condition, the court next reviews the sufficiency of Plaintiffs’ allegations of 26 actual or constructive knowledge of the risk-creating condition. Plaintiffs appear to 27 allege actual or constructive knowledge of a COVID-19 risk to passengers at two points in time: (1) At the time that Defendants decided to set sail on February 11, 2020, and (2) [1] during the voyage, prior to disembarking on February 21, 2020. As to the first point in [2] time, Plaintiffs allege various public announcements about the risks of COVID-19 by the [3] United States Centers for Disease Control and Prevention (“CDC”) (FAC ¶ 50), the World [4] Health Organization (“WHO”) (id. ¶ 51), and the European Union (id. ¶ 72). Plaintiffs [5] also allege that “in early February 2020, an outbreak of COVID-19 occurred aboard the [6] cruise ship Diamond Princess”. (Id. ¶ 74.) “In a February 18, 2020, . . . the CDC in [7] response to the crisis aboard the Diamond Princess, the CDC stated that ‘the rate of new [8] reports of positives [now] on board, especially among those without symptoms, [9] 10 highlights the high burden of infection on the ship and potential for ongoing risk.’” (Id. ¶ 11 79.) As to the second point in time, Plaintiffs allege that on February 19, Defendants 12 became “aware of at least one passenger suffering from COVID-19 symptoms onboard,” 13 because that passenger “sought medical treatment from the medical center onboard” and 14 “reported suffering from acute respiratory distress for about a week before seeking 15 treatment.” (Id. ¶¶ 97, 99 (internal quotation marks omitted).) 16 Plaintiffs’ allegations are sufficient at this stage to plausibly demonstrate that 17 Defendants knew or should have known that COVID-19 posed a threat to its passengers. 18 The court notes that during the early days of the pandemic, the information available 19 was changing day to day, and at times, statements made by world leaders were 20 contradictory or minimized the risks of COVID-19. At the pleading stage, however, the 21 court cannot evaluate the significance of the public officials’ statements or the 22 significance of the outbreak on the Diamond Princess. Although it may be true, as 23 Defendants contend, that on February 11, 2020, they did not have sufficient knowledge of 24 the specific risks of COVID-19, it is plausible that at some point during the voyage, 25 Defendants became aware of those risks based on statements specific to the Diamond 26 Princess outbreak and reports by a passenger of COVID-19 related symptoms. Therefore, 27 the court declines to dismiss Plaintiffs’ negligence claim on this basis. Defendants’ actual or constructive knowledge on February 11, 2020, before setting sail and at the time that a [1] passenger reported symptoms associated with COVID-19 is a factual issue that cannot be [2] determined at this stage.4 [3] ii. Injury [4] The “zone of danger” test “confines recovery for stand-alone emotional distress [5] claims to plaintiffs who: (1) ‘sustain a physical impact as a result of a defendant’s [6] negligent conduct’; or (2) ‘are placed in immediate risk of physical harm by that [7] conduct’-that is, those who escaped instant physical harm, but were ‘within the zone of [8] danger of physical impact.’” Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 146 (2003) [9] 10 (quoting Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997)). Here, the zone of 11 danger test is only applicable to plaintiffs who do not allege that they tested positive for 12 COVID-19 or that they exhibited symptoms of COVID-19. See Ayers, 538 U.S. at 136 13 (describing “[t]wo categories of claims for emotional distress damages: Stand-alone 14 emotional distress claims not provoked by any physical injury, for which recovery is 15 sharply circumscribed by the common-law zone-of-danger test; and emotional distress 16 claims brought on by a physical injury, for which pain and suffering recovery is 17 permitted.”). Plaintiffs who allege that they tested positive or that they exhibited 18 symptoms of COVID-19 necessarily allege physical injury—contracting the disease5 and 19 injury from the disease. These Plaintiffs sufficiently allege an injury for which they could [20] 21 4 While the court concludes that the allegations plausibly rise to the level of negligence, 22 the allegations are insufficient to plausibly raise intentional infliction of emotional distress claims. See Wallis v. Princess Cruises, Inc., 306 F.3d 827, 841 (9th Cir. 2002) [23] (explaining that conduct must be “extreme and outrageous conduct” that is “so 24 outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and utterly intolerable in a civilized community.” (citation omitted)). [25] Accordingly, the court dismisses Plaintiffs’ claims for intentional infliction of emotional 26 distress without leave to amend. 5 As the court discusses below, these plaintiffs must nonetheless plausibly plead [27] causation. recover. See, e.g., Archer v. Carnival Corp. & PLC, No. 2:20-CV-04203-RGK-SK, 2020 WL 1 7314847, at *7 (C.D. Cal. Nov. 25, 2020). [2] In contrast, Plaintiffs who do not allege that they tested positive for COVID-19 or [3] that they experienced symptoms of COVID-19 must meet the zone of danger test. [4] Plaintiffs argue that under the second prong of the zone of danger test, “Defendants [5] exposed them to COVID-19 and placed them at ‘risk of immediate physical injury’” [6] (Opp. at 11 (citing FAC ¶ 146).) Plaintiffs contend that “[t]he fact that at least 100 [7] passengers who travelled aboard the Grand Princess tested positive for COVID-19, and at [8] least two passengers died, supports their allegations[, and] demonstrates that the entire [9] 10 Grand Princess was plausibly a zone of danger and all passengers were at immediate risk 11 of contracting COVID-19.” (Id. ¶ 11.) The court disagrees. Contracting COVID-19 is not 12 plausibly imminent, immediate, or an instant physical harm. There are too many factors 13 involved to determine the risk of exposure for each individual. Each person’s personal 14 conduct varies and contributes to whether that person is in “imminent” risk of 15 contracting the virus. The length of time a person is exposed to the virus will also 16 influence whether that person contracts the virus. Further, even if a person is exposed, 17 and Defendants’ conduct was a factor to that exposure, contracting the virus does not 18 occur instantly or immediately. 19 The court concludes that the eight plaintiffs who only allege fear of contracting the 20 virus and the resulting emotional distress cannot pursue negligent infliction of emotional 21 distress claims because exposure to the virus does not result in “immediate risk” of 22 physical harm. The court dismisses these plaintiffs’ claims without leave to amend. 23 iii. Causation 24 Plaintiffs have not sufficiently alleged facts to raise the plausible inference that 25 they were exposed to COVID-19 onboard the Grand Princess as a result of Defendants’ 26 negligent conduct and contracted the disease. Plaintiffs have not alleged even basic 27 information, such as when Plaintiffs tested positive for COVID-19 or when Plaintiffs began to exhibit symptoms. Because Plaintiffs do not allege when they began to [1] experience symptoms, it is impossible to know whether Plaintiffs boarded the Grand [2] Princess with the disease or whether Plaintiffs contracted the disease after offboarding. [3] Such deficiencies may be cured by amendment by those Plaintiffs who have alleged that [4] they tested positive or that they exhibited symptoms for COVID-19. [6] B. Alter Ego “Admiralty courts may pierce the corporate veil in order to reach the alter egos of [7] a corporate defendant.” Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287 , 1294 (9th Cir. 1997) [8] (internal quotations omitted). To disregard corporate separateness in admiralty requires [9] 10 a showing that “the controlling corporate entity exercise[s] total domination of the 11 subservient corporation, to the extent that the subservient corporation manifests no 12 separate corporate interests of its own.” Id. (quoting Kilkenny v. Arco Marine Inc., 800 F.2d 13 853, 859 (9th Cir. 1986)). “[F]ederal common law allows piercing of the corporate veil 14 where a corporation uses its alter ego to perpetrate a fraud or where it so dominates and 15 disregards its alter ego’s corporate form that the alter ego was actually carrying on the 16 controlling corporation’s business instead of its own.” Id. 17 Here, Plaintiffs have not plausibly alleged that Carnival exercises total domination 18 over Princess. Plaintiffs allegations appear to describe a typical parent-subsidiary 19 relationship. (See FAC ¶ 37 (“Carnival and Princess [ ]share the same Board of Directors 20 and almost all of the same executive officers and CARNIVAL and PRINCESS also appear 21 to use the same assets, including the vessel that is the subject of this Complaint.”); ¶ 32 22 (describing Carnival’s SEC filing in which Carnival claims “a portfolio of cruise brands” 23 which includes Princess); ¶ 34 (“Carnival claims control over Princess’s operations . . . in 24 a federal criminal plea agreement signed by Carnival in 2016, Carnival stated that it 25 []currently monitors and supervises environmental, safety, security, and regulatory 26 requirements for Princess and other Carnival brands.”).) Further, there are no allegations 27 that Carnival uses Princess to perpetrate fraud. Absent nonconclusory allegations demonstrating Carnival’s total domination over Princess, Plaintiffs cannot pursue their [1] claims against Carnival under an alter ego theory of liability. [2] The court dismisses Plaintiffs’ claims against Carnival with leave to amend. [3] C. Class Action Waiver [4] Defendants next argue that Plaintiffs’ class action claims should be dismissed [5] because “they all agreed to a class-action waiver in the Passage Contract.” (Princess Mot. [6] at 5.) In support of its motion, Defendants submit the declaration of Princess’ Director of [7] Customer Relations, Collin Steinke, declaring to Princess’s booking process. (Dkt. 27-2, [8] Steink Decl.) At oral argument, Plaintiffs argued that the factual record, at this stage, [9] 10 regarding the passage contract consists of only Defendants’ employee’s declaration and 11 urged the court to permit targeted discovery into the passage contract. Plaintiffs note 12 that at this stage, Plaintiffs were unable to cross-examine Mr. Steinke or gather additional 13 information regarding the manner in which the passage documents were presented to 14 Plaintiffs. 15 The court agrees that, at the pleading stage, where there appears to be a factual 16 dispute regarding context, how the documents were presented to Plaintiffs and agreed 17 to, the better practice is to have the issue addressed on a complete factual record. The 18 issue is better raised in the context of a motion for summary adjudication. Thus, the 19 court denies Defendants’ motion to dismiss or strike the class action allegations without 20 prejudice. 21 D. Standing to seek injunctive relief 22 Lastly, Defendants argue that Plaintiffs lack standing to seek injunctive relief 23 because Plaintiffs do not allege that they will travel on a Princess cruise ship again nor 24 that Princess’s conduct will certainly cause Plaintiffs’ injury. (Princess Mot. at 16.) The 25 court agrees. Plaintiffs’ allegation that “[i]n the future, Plaintiffs would like to go on 26 cruises again, including cruises operated by Defendants . . . .”, (FAC ¶ 151), is insufficient 27 to establish imminent future injury. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (“the threat must be actual and imminent, not conjectural or hypothetical”); [1] Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (“allegations of possible future [2] injury are not sufficient”). The court grants Plaintiffs leave to amend to sufficiently allege [3] standing. [4] IV. CONCLUSION [5] The court grants Defendants’ motions to dismiss in part, denies in part, and orders [6] as follows: [7] (1) The court dismisses Stephen Collins, Tracy Emerald, Brian Losie, John Miller, [8] Renate Miller, Kenneth Prag, John Shaterian, and Kurt Emerald’s emotional distress [9] 10 claims without leave to amend; 11 (2) the court dismisses the remaining Plaintiffs’ negligent infliction of emotional 12 distress claims with leave to amend to plausibly allege causation; 13 (3) the court dismisses Plaintiffs’ intentional infliction of emotional distress claims 14 without leave to amend; 15 (4) the court grants Plaintiffs leave to amend to plausibly plead a theory of liability 16 against Carnival and to properly plead standing for injunctive relief; and 17 (5) the court denies Defendants’ motion to dismiss or strike the class action 18 allegations without prejudice. 19 Any amendment must be filed within fourteen days from the date of this order. 20 IT IS SO ORDERED. 21 Dated: August 9, 2021 [23] 24 ___________________________________ 25 DEAN D. PREGERSON 26 UNITED STATES DISTRICT JUDGE