Gibson-Dalton v. Carnival Corp. & PLC (Lawyers Weekly No. 002-135-17, 11 pp.) (David Norton, J.) 2:16-cv-02457; D.S.C.
Holding: In a case involving a maritime contract, the parol evidence rule does not bar defendant’s proffer of an “exemplar” contract; moreover, Rule 1004(b), FRE, allows defendant to provide an exemplar when “an original cannot be obtained by any available judicial process.” Here, no “original” contract ever existed because the parties’ cruise ticket contract consisted of terms presented to the plaintiff-passenger during the online check-in process and plaintiff’s clicking “Accept Terms.”
The court (1) grants defendant’s motion to dismiss plaintiff’s outrage and unfair trade practices claims for failure to comply with the arbitration clause of the ticket contract, (2) grants defendant’s motion to transfer plaintiff’s negligence claim to the Southern District of Florida, and (3) denies without prejudice defendant’s motion to dismiss all claims as untimely.
Plaintiff asserts that she is not bound by the ticket contract. Accordingly, in construing defendant’s motion to dismiss under Rule 12(b)(6), FRCP, the court does not dismiss plaintiff’s claims as untimely under the ticket contract’s limitations clause.
Even if the court cannot rule on the merits issues, it can certainly rule on the arbitration and venue issues raised by defendant.
Because plaintiff has failed to present any evidence suggesting that she is not bound by the ticket contract, her outrage and unfair trade practices claims are dismissed for failure to comply with the contract’s arbitration provision, and her remaining negligence claim should be dismissed or transferred to the Southern District of Florida. In this regard, it is telling that plaintiff has not provided any sworn statements, or even explained why she is not bound by the ticket contract. Therefore, the court finds there is no genuine issue of fact as to whether plaintiff entered into the ticket contract.
Motion granted in part and denied without prejudice in part.