HM&B Prevails on Appeal in Dismissal of Complaint on Claims of Negligent Operation of Shore Excursion

HM&B Prevails on Appeal in Dismissal of Complaint on Claims of Negligent Operation of Shore Excursion

HM&B Prevails on Appeal in Dismissal of Complaint on Claims of Negligent Operation of Shore Excursion

Wolf v. Original Canopy Tour, No. 15-12341 (11th Cir. Mar. 28, 2017).

Brent Wolf was a passenger aboard a Celebrity Cruises Inc. vessel. Mr. Wolf sued OCT Enterprises, Ltd., after being injured during an offshore zip-lining excursion in Costa Rica. OCT moved to dismiss Wolf’s complaint for lack of personal jurisdiction. In support, OCT attached the declaration of Richard Graham, a shareholder and vice-president of OCT. The district court held a non-evidentiary hearing on OCT’s motion to dismiss. After hearing from the parties, it granted the motion. Mr. Wolf appealed the order dismissing the claims against OCT for lack of personal jurisdiction.

The court found there was no general jurisdiction, concluding that to the extent Wolf asserted a Miami address listed on the Tour Operator Agreement established general jurisdiction, OCT sufficiently rebutted the contention through Graham’s declaration. Mr. Graham explained that this address was merely a mail-forwarding facility used because of the unreliable mail system in Costa Rica. In response, Wolf attached a number of documents, including the Tour Operator Agreement itself. The court determined, however, that these documents did not conflict with or rebut Graham’s statements.

Next, the court addressed the issue of whether there was specific jurisdiction. The court concluded that Wolf did not allege OCT committed a tortious act in Florida and could not assert specific jurisdiction based on any tort claims related to the incident that occurred in Costa Rica. He instead argued that specific jurisdiction is established through language in the Tour Operator Agreement executed in Miami, Florida, between OCT and Celebrity, of which he and other passengers were purportedly direct third-party beneficiaries. The court held that Wolf’s claim for breach of contract based on a third-party beneficiary theory failed because the language of the Agreement expressly belies any intent to benefit a third party. Because the alleged tortious activity occurred outside of Florida, and there was no connexity between the Agreement and Wolf’s cause of action, the appellate court concluded that the district court did not err in determining it lacked specific personal jurisdiction over OCT.

Finally, Wolf requested jurisdictional discovery in order to adequately rebut the evidence presented by OCT. Mr. Wolf’s general request for jurisdictional discovery—made over four months after filing his complaint and buried within his response to OCT’s motion to dismiss—did not specify what information he sought or how that information would bolster his allegations. Accordingly, the appellate court held that the district court therefore did not improperly deny jurisdictional discovery.