Cruise Ship Court Cases
Booth V. Carnival Corp
April 1, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 07-10689
D. C. Docket No. 05-23341 CV-PCH
VICTOR M. BOOTH, as Personal Representative of
the Estate of Steve M. Booth, Deceased,
Plaintiff-Appellee,
versus
CARNIVAL CORPORATION,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(April 1, 2008)
Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,* District
Judge.
ANDERSON, Circuit Judge:
Defendant-Appellant Carnival Corporation (“Carnival”) appeals the denial of
its motion to dismiss. Carnival argues that the district court should have dismissed the instant wrongful death suit because the suit was filed after the expiration of a one-year contractual limitation period.
The district court, however, in a particularly well-reasoned order, held that the limitation period was subject to equitable tolling during the pendency of the plaintiff’s parallel suit in a state court of competent jurisdiction.
In reaching its conclusion, the district court emphasized that although the state court eventually dismissed the state case for improper venue, the state court had concurrent subject matter jurisdiction over the wrongful death claim.
Notwithstanding its ultimate decision to reject Carnival’s motion to dismiss,
the district court noted an absence of directly controlling Supreme Court and
Eleventh Circuit precedent and acknowledged that whether equitable tolling is
appropriate under the circumstances of this case presents a close question.
Accordingly, the district court certified this interlocutory appeal. With the
understanding that “[t]he question of whether equitable tolling applies is a legal
one subject to de novo review,” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153(11th Cir. 2005), we now affirm the district court’s ruling.
BACKGROUND
The parties do not dispute the relevant facts. This wrongful death action
stems from a fatal scuba diving accident that occurred on July 20, 2004, in the
territorial waters of the U.S. Virgin Islands. The decedent, Steve Booth (“Steve” or “the decedent”), was a Carnival cruise ship passenger at the time of the accident, and he embarked on the ill-fated scuba excursion with the assistance of Carnival and Carnival’s agent, a Virgin Islands scuba instruction company.
The decedent’s cruise ticket from Carnival contains several provisions that
govern his estate’s right to sue the company.
According to the ticket, Steve’s estate must give Carnival written notice of any claim within 185 days of his injury or death. In addition, the ticket establishes a one-year limitation period within which any suit must be commenced. Finally, the ticket contains a forum selection clause, which specifies that the District Court for the Southern District of Florida shall serve as the appropriate venue, assuming that this federal district court has subject matter jurisdiction. In situations where the District Court for the Southern District of Florida lacks subject matter jurisdiction, the ticket identifies the state courts in Miami-Dade County, Florida, as the appropriate alternative forum.
After timely giving Carnival written notice, Plaintiff-Appellee Victor Booth
(“Booth”), as representative of Steve’s estate, filed a wrongful death action in the Importantly, the district court implicitly found that this state court had subject matter jurisdiction over the claim although venue was ultimately improper, and Carnival has not argued otherwise on appeal.
state courts of Miami-Dade County on July 5, 2005, sixteen days before the
running of the contractual limitation period. On December 29, 2005, while the
state case was pending but after the contractual limitation period had run, Booth filed a second identical action against Carnival in federal district court. The federal court administratively closed the federal action pending the outcome of the state litigation.
Back in state court, Carnival moved, in an amended answer, to dismiss
the state suit for improper venue based on the ticket’s federal forum selection
clause. Although the state trial court denied Carnival’s motion to dismiss, holding that Carnival had waived its venue defense, Carnival appealed to the state appellate court and eventually won a dismissal of the state action on venue grounds. The federal suit was then reopened, and Carnival sought a dismissal on limitation grounds. The district court, however, denied Carnival’s motion to dismiss, ruling that the contractual limitation period was subject to equitable tolling, and this interlocutory appeal followed.
In reaching our conclusion, we reject Carnival’s suggestion that Booth’s
attorney’s filing in an improper venue constitutes the type of “mere negligence” for which equitable tolling is inappropriate. Carnival bases its argument on the
Supreme Court’s holding that “the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 489 U.S. 89, 96, 111 S. Ct. 453, 458 (1990). In Irwin, the plaintiff failed to file an employment discrimination complaint in time “because his lawyer was absent from his office at the time that the EEOC notice was received.” Even though the plaintiff subsequently filed within thirty days after he personally received notice, his attorney’s simple neglect could not justify equitably tolling the applicable limitation period. Id. In finding equitable tolling inappropriate, however, the Irwin Court expressly contrasted that situation with Burnett, where equitable tolling was appropriate because the “plaintiff timely filed [his] complaint in [the] wrong court.” Id. at 96 n.3, 111 S. Ct. at 458 n.3.
Although Booth’s attorney should have been aware of the cruise ticket’s forum
selection clause and of case law deeming such clauses enforceable, he was no more neglectful than the attorney in Burnett who filed in Ohio despite the state’s venue provisions, which established that venue could not properly lie in any Ohio county. Like the Burnett plaintiff, Booth was entitled to believe that his state filing might be sufficient given the fact that defendants can, and often do, waive their defense of improper venue.
Finally, we agree with the district court’s conclusion that Booth pursued his
claim with proper diligence. Carnival first raised its venue defense in an amended
pleading on September 14, 2005, and Booth filed his federal suit on December 29, 2005, despite Booth’s reasonable (though eventually erroneous) belief that
Carnival had waived this defense. As noted above, Booth in no way slept on his
claim, and Carnival was on notice within the limitation period of the wrongful
death suit. Because Booth filed his wrongful death claim in a state court that
possessed subject matter jurisdiction concurrently with the federal courts, and
because the state suit was dismissed solely on grounds of improper venue, and
because Booth diligently pursued his claim, we hold that the federal district court properly equitably tolled the parallel federal action during the pendency of the state suit. Accordingly, the judgment of the district court is
AFFIRMED.
