Johnson et al v. Holland America Line, No. 2:2011cv00435 - Document 17 (W.D. Wash. 2011)
Court Description: ORDER denying dft's 6 Motion for Summary Judgment by Judge James L. Robart.(RS) Modified on 7/21/2011/cc T Johnson (RS).
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Johnson et al v. Holland America Line Doc. 17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 TONDA JOHNSON, et al., Plaintiffs, 11 CASE NO. C11-0435JLR ORDER ON MOTION FOR SUMMARY JUDGMENT v. 12 13 HOLLAND AMERICA LINE, 14 Defendant. 15 This matter comes before the court on Defendant Holland America Line’s 16 (“HAL”) motion for summary judgment (Dkt. # 6). Plaintiffs Tonda Johnson, Cris 17 Johnson, James Johnson, and Daniel Johnson (collectively, “the Johnsons”), who are 18 proceeding pro se, oppose HAL’s motion. (Dkt. # 11.) Having reviewed the submissions 19 of the parties and the relevant law, and no party having requested oral argument, the court 20 GRANTS in part and DENIES in part HAL’s motion for summary judgment. 21 22 ORDER- 1 Dockets.Justia.com 1 2 I. BACKGROUND On December 18, 2010, Tonda and Cris Johnson and their sons James and Daniel1 3 departed from San Diego on the HAL cruise ship M/S OOSTERDAM (“the ship”). Early 4 in the morning of December 22, 2010, James and Daniel were involved in an altercation 5 with another passenger, David Illner. The parties’ accounts of this incident differ. 6 According to Gary Tonkin, a HAL security officer who investigated the incident, Mr. 7 Illner, James, and Daniel were drinking together in the Aft Lido Pool area of the ship. 8 (Tonkin Decl. (Dkt. # 9) ¶ 1.) An assistant steward saw James and Daniel push Mr. Illner 9 in the chest, and he and a second assistant steward saw Daniel sitting on Mr. Illner and 10 hitting him with his elbow. (Id. ¶¶ 2-4 & Exs. A & B.) The ship’s medical officer 11 examined Mr. Illner and observed bruises and scratch marks consistent with defensive 12 injuries. (Id. ¶¶ 5-6 & Ex. C.) Captain Jeroen Baijens ordered a search of Mr. Illner’s 13 room for weapons, but no weapons were found. (Id. ¶¶ 7-8 & Ex. D.) Mr. Illner 14 provided a brief statement in which he recounted that “things got out of hand” when he 15 asked James and Daniel not to “hit on” two younger women, and that he was pushed to 16 the ground and kicked in the head and body. (Id. ¶¶ 9-10 & Ex. E.) According to Mr. 17 Tonkin, James and Daniel were asked to provide statements, but neither did so; instead, 18 they went ashore with their parents on an excursion in Mazatlan, Mexico. (Id. ¶ 9.) 19 Captain Johannes Baijens reviewed Mr. Tonkin’s incident report (id. Ex. F), the 20 statements of the witnesses, and the medical officer’s report, and discussed the matter 21 1 For simplicity of reference, the court refers to the members of the Johnson family by 22 their first names. ORDER- 2 1 with the director of HAL’s Fleet Security. (Baijens Decl. (Dkt. # 8) ¶ 1.) Based on his 2 review of the evidence, Captain Baijens concluded that James and Daniel’s “actions 3 constituted excessive force for self defense” and ordered that James and Daniel be 4 removed from the ship in Mazatlan. (Id. ¶ 2.) 5 The Johnsons dispute Mr. Tonkin’s and Captain Baijens’s accounts. First, the 6 Johnsons contend that Mr. Illner initiated the fight, rather than James and Daniel. (Resp. 7 at 2-10; see also id. Ex. B.) Second, the Johnsons assert that James and Daniel were 8 never asked to give statements and were not provided an opportunity to tell their side of 9 the story before they were removed from the ship. (Resp. at 2; see also id. Ex. B.) Third, 10 the Johnsons assert that HAL’s crew did not obtain statements from witnesses who saw 11 the actual fight. (Resp. at 2.) Finally, the Johnsons contend that HAL placed James and 12 Daniel in danger because shortly after the December 22, 2010 incident, several cruise 13 lines, including HAL, canceled stops in Mazatlan due to incidents of violence against 14 tourists and crew ship passengers. (See id. Ex. A (attaching a January 26, 2011 article 15 from “Sign On San Diego,” the San Diego Union-Tribune’s website).) 16 On March 11, 2011, the Johnsons filed their complaint in this action. (Dkt. # 1.2) 17 The Johnsons allege that James and Daniel were unjustly removed from the ship without 18 a thorough investigation; that ship personnel were negligent in serving alcohol to an 19 underage passenger (presumably Mr. Illner) and in failing to intervene when the 20 passenger’s behavior became threatening; and that HAL’s crew’s conduct ruined the 21 2 The Johnsons filed their complaint using the Western District of Washington’s form 22 complaint for civil pleadings, which contains minimal space for factual allegations. (See id.) ORDER- 3 1 Johnsons’ Christmas vacation, causing them severe emotional distress. (Id. at 2.) The 2 Johnsons seek an award of $5,000.00 to compensate them for the cost of the cruise, for 3 James and Daniel’s out-of-pocket expenses, and for their emotional distress. (Id. at 3.) 4 On June 9, 2011, HAL filed the instant motion for summary judgment. 5 II. ANALYSIS 6 A. Summary Judgment Standard 7 Summary judgment is appropriate if the pleadings, the discovery and disclosure 8 materials on file, and any affidavits, when viewed in the light most favorable to the non9 moving party, “show that there is no genuine dispute as to any material fact and the 10 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex 11 Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. County of Los Angeles, 477 F.3d 12 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is 13 no genuine issue of material fact and that he or she is entitled to prevail as a matter of 14 law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, the 15 nonmoving party must go beyond the pleadings and identify facts which show a genuine 16 issue for trial. Cline v. Indus. Maint. Eng’g. & Contracting Co., 200 F.3d 1223, 1229 17 (9th Cir. 2000). The non-moving party “must make a showing sufficient to establish a 18 genuine dispute of material fact regarding the existence of the essential elements of his 19 case that he must prove at trial.” Galen, 477 F.3d at 658. Genuine factual issues are 20 those for which the evidence is such that “a reasonable jury could return a verdict for the 21 non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 22 ORDER- 4 1 B. Breach of Contract Claim 2 HAL argues that it is entitled to summary judgment on the Johnsons’ claim that 3 HAL breached the Passage Contract by removing James and Daniel from the ship 4 without conducting a reasonable investigation. HAL contends that its Passage Contract is 5 enforceable; that it puts a passenger on notice that HAL may “reasonably determine” that 6 it is appropriate to deny transportation to a passenger in order to ensure the safety of other 7 passengers; and that Captain Baijens’s decision to remove James and Daniel from the 8 ship was reasonable and consistent with his authority as master of the vessel. HAL relies 9 on Clause A.6 of the Terms and Conditions of HAL’s Passage Contract, which provides: 10 11 12 13 14 15 16 6. Authority to Remove Passengers: We may reasonably determine that for your safety, the safety of the Ship or other means of transportation or the safety or comfort of other passengers or our employees, you be denied transportation either before or during the Cruise, Cruisetour or HAL Land Trip. By way of example, these would include situations where: (a) you are or become in such condition as to be unfit to travel or dangerous or obnoxious to other passengers or employees; (b) you are inadmissible under the immigration or other laws of any country included in the Cruise, Cruisetour or HAL Land Trip itinerary or fail at any time to possess required travel documents; or (c) you fail to abide by the rules or orders of the Master or other ship’s officers. If transportation is denied after departure, you and your baggage may be landed or transported to any port or location that we select, without any resulting liability on our part. 17 (Kidd Decl. (Dkt. # 7) Ex. 1 (“Passage Contract”) Clause A.6.) 18 The Johnsons do not dispute that the Passage Contract is valid and enforceable. 19 Rather, they contend that Captain Baijens’s decision to remove James and Daniel from 20 the ship was not reasonable under Clause A.6 because James and Daniel were never 21 given the opportunity to provide statements before being removed from the ship and 22 ORDER- 5 1 because HAL did not consider the potential danger James and Daniel faced by being 2 forced to disembark in Mazatlan. (Resp. at 9-11.) 3 The issue in this case is not whether Captain Baijens’s decision to remove James 4 and Daniel from the ship was correct, but, rather, whether his decision to remove them 5 was reasonable. Whether a defendant acted reasonably is generally a question for the 6 trier of fact.3 Wyler v. Holland Am. Line-United States, Inc., 348 F. Supp. 2d 1206, 1209 7 (W.D. Wash. 2003). Here, based on the parties’ conflicting positions on whether James 8 and Daniel were asked to provide statements before Captain Baijens made his decision, 9 the court concludes that there is a genuine dispute of fact regarding whether Captain 10 Baijens “reasonably determine[d]” that it was necessary to remove James and Daniel 11 from the ship in the interest of their safety, “the safety of the Ship . . . or the safety or 12 comfort of other passengers or [HAL] employees.” (Passage Contract Clause A.6.) The 13 court therefore denies HAL’s motion for summary judgment on the Johnsons’ breach of 14 contract claim. 15 C. Emotional Distress Claim 16 HAL contends that it is entitled to summary judgment on the Johnsons’ claim for 17 damages for emotional distress because it disclaimed liability for emotional distress 18 damages in the Passage Contract. Clause A.4(a) of the Passage Contract provides: 19 20 3 The Passage Contract provides that it is to be construed “in accordance with the general maritime law of the United States and, to the extent such maritime law is not applicable, it shall be construed in accordance with the laws of the State of Washington.” (Passage Contract Clause 22 A.4(b).) 21 ORDER- 6 1 2 3 4 5 6 7 4. Limitation on Liability; Governing Law; Non-HAL Services: (a) In the event you are injured, become ill, or die, or your property is lost or damaged, or you and/or your property is delayed, or you sustain any other loss or damage whatsoever, we will not be liable to you unless the occurrence was due to our negligence or willful fault. We disclaim liability to you under any circumstances for infliction of emotional distress, mental suffering or psychological injury which was not: (i) the result of physical injury to you caused by the negligence or fault of a crewmember or the manager, agent, master, owner or operator of the Ship; (ii) the result of you having been at actual risk of physical injury caused by the negligence or fault of a crewmember or the manager, agent, master, owner or operator of the Ship; or (iii) intentionally inflicted by a crewmember or the manager, agent, master, owner or operator of the Ship. In no event will we be liable to you for consequential, incidental, exemplary or punitive damages. 8 (Passage Contract Clause A.4(a).) 9 The Johnsons acknowledge that this provision of the Passage Contract is 10 enforceable, but contend that it does not disclaim liability for Tonda Johnson’s emotional 11 distress claim because her emotional distress and mental suffering was caused by Captain 12 Baijens’s negligence or fault, was “the result of her being at actual risk of physical injury 13 (becoming violently ill),” and was intentionally inflicted by Captain Baijens and other 14 high-ranking crew members. (Resp. at 11-12.) The Johnsons contend that “more facts 15 will be evident” regarding Ms. Johnson’s emotional distress claim after they have an 16 opportunity to obtain a statement from Tri Wiyono, Manager of the Vista Dining Room. 17 (Id. at 12.) 18 Mindful of its duty to construe a pro se plaintiff’s filings liberally, see Erickson v. 19 Pardus, 551 U.S. 89, 94 (2007), the court construes the Johnsons’ response as a request 20 21 22 ORDER- 7 1 that the court deny the motion under Rule 56(d) of the Federal Rules of Civil Procedure.4 2 Rule 56(d) provides that if “a nonmovant shows by affidavit or declaration that, for 3 specified reasons, it cannot present facts essential to justify its opposition, the court may: 4 (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or 5 declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. 6 P. 56(d). 7 HAL has filed its motion for summary judgment very early in this case. Amended 8 pleadings may be filed until November 2011; discovery does not close until January 9 2010; and trial is set for May 2012. (Dkt. # 13.) Further, it appears that HAL filed the 10 instant motion before the parties had even exchanged initial disclosures. (See Joint Status 11 Report (Dkt. # 10) ¶ 5.A (stating, on June 17, 2011, that initial disclosures were currently 12 being prepared).) Because this litigation is in its earliest stages, and because the Johnsons 13 have identified evidence that they represent will support their claim for emotional distress 14 damages, the court denies HAL’s motion for summary judgment pursuant to Rule 15 56(d)(1). 16 17 III. CONCLUSION For the foregoing reasons, the court DENIES HAL’s motion for summary 18 judgment (Dkt. # 6). The denial is without prejudice against HAL filing a subsequent 19 motion for summary judgment after the parties conduct additional discovery in this case. 20 4 The court notes that the Johnsons cited an out-of-date version of Rule 56 in their response. (See, e.g., Resp. at 10 (“As a matter of law under Fed. R. Civ. 56(f), essential facts are not available to the nonmovant.”).) The court directs the Johnsons to review the current version 22 of Rule 56. 21 ORDER- 8 1 Dated this 21st day of July, 2011. 2 A 3 4 ____ JAMES L. ROBART United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 9
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