Read your group’s assigned case, summarize it and what you learned from the case and how you would apply it in a management situation.?Complaint-1.pdfAnswertoComplaint-1.pdfMotiontoD
Read your group's assigned case, summarize it and what you learned from the case and how you would apply it in a management situation.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO:
AMY HOWARD and KENNETH HOWARD, her husband,
Plaintiffs,
v.
KERZNER INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL BAHAMAS LIMITED, a Bahamian company; ISLAND HOTEL COMPANY LIMITED, a Bahamian company; PARADISE ISLAND LIMITED, a Bahamian company; BOBBY FLAY’S MESA GRILL BAHAMAS.
Defendants. ________________________________________/
COMPLAINT FOR DAMAGES
Plaintiffs, AMY HOWARD and KENNETH HOWARD, her husband sue KERZNER
INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL
BAHAMAS LIMITED, a Bahamian company; ISLAND HOTEL COMPANY LIMITED,
a Bahamian company; and PARADISE ISLAND LIMITED, a Bahamian company and in support
thereof state as follows:
1. This is an action in diversity under 28 U.S.C. § 1332 and/or all other applicable law with
damages in excess of Seventy-Five Thousand ($75,000.00) Dollars, exclusive of interest and
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costs.
2. Venue is proper in the U.S. District Court, Southern District of Florida, pursuant to 28
U.S.C. § 1391 and additionally for the reasons stated below.
3. At all times material hereto, AMY HOWARD and KENNETH HOWARD are and were
United States citizens, residing and domiciled in the state of North Carolina.
4. Defendant, KERZNER INTERNATIONAL LIMITED (hereinafter “KERZNER”), was
formerly known as “Sun International Hotels Limited.”
5. KERZNER’s corporate headquarters and “nerve center” is located in Plantation, Florida.
6. Defendant, KERZNER, is a Bahamian publically traded holding company, which functions
as the parent company to multiple subsidiaries. KERZNER, and its subsidiaries own and
operate the Atlantis Resort, located in Paradise Island, Bahamas.
7. The Atlantis Resort has been doing business continuously since it opened in 1994.
8. KERZNER INTERNATIONAL BAHAMAS LIMITED is a wholly owned subsidiary of
KERZNER, and the two entities operate as one as it relates to the resort on Paradise Island,
Bahamas, known to the public and most commonly referred to as “The Atlantis Resort.”
9. KERZNER is the holding and parent company of KERZNER INTERNATIONAL
BAHAMAS LIMITED, (hereinafter “KERZNER BAHAMAS”), which was formerly known
as “Sun International Bahamas Limited.”
10. Though the corporate names have been changed, KERZNER and KERZNER BAHAMAS
are one and the same to the corporations formerly known as “Sun International Hotels
Limited” and “Sun International Bahamas Limited.”Defendant, KERZNER (and its
subsidiary KERZNER BAHAMAS), is and was a Bahamian company doing business in the
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Southern District of Florida with its principal place of business located at 1000 South Pine
Island Road, Plantation, Florida 33324.
11. Defendant, KERZNER, is the holding and parent company of Kerzner International Resorts,
Inc., a Florida corporation, located at1000 South Pine Island Road, Plantation, Florida, which
primarily functions as a marketing, sales, advertising, reservation, wholesale tour service and
travel business for the Atlantis Resort, located in Paradise Island, Bahamas.
12. Additional corporations, all subsidiaries of KERZNER, are registered with the State of
Florida as having businesses that operate from the same office located at1000 South Pine
Island Road, Plantation, Florida 33324. Those corporations include, but are not limited to:
Kerzner International Management Services, Inc.; Kerzner International Development
Services, Inc.; and, Kerzner International North America, Inc.
13. Defendant, ISLAND HOTEL COMPANY LIMITED (hereinafter “ISLAND HOTEL”), is
a Bahamian company that is also a subsidiary of Defendant, KERZNER and KERZNER
BAHAMAS.
14. Defendant, ISLAND HOTEL, as a subsidiary of Defendant, KERZNER, is involved on the
operations, management, maintenance, supervision, and business practices of the Atlantis
Resort in Paradise Island, Bahamas.
15. Defendant, PARADISE ISLAND LIMITED, (hereinafter “PIL”) is a Bahamian company,
is a subsidiary of Defendant, KERZNER, (as well as its subsidiary KERZNER BAHAMAS).
16. Defendant, PIL, as a subsidiary of Defendant, KERZNER, is involved on the operations,
maintenance, supervision, and business practices of the Atlantis Resort located in Paradise
Island, Bahamas.
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17. At all material times, KERZNER is subject to the personal jurisdiction of this Court as
follows:
a. KERZNER DEFENDANTS, either personally or through an agent, e.g., Kerzner
International Resorts, Inc., a Florida corporation, and/or KERZNER BAHAMAS, a
Bahamian corporation, operated, conducted, engaged in or carried on a business or
business ventures in Florida.
b. KERZNER DEFENDANTS have an office or agency in Florida, to-wit: 1000 South
Pine Island Road, Plantation, Florida 33324. Therefore, jurisdiction exists pursuant
to Fla. Stat. §48.193(1)(a).
c. KERZNER DEFENDANTS are and were at all material times engaged in substantial
and not isolated interstate and intrastate activity in Florida and, therefore, is subject
to this Court’s jurisdiction pursuant to Fla. Stat. §48.193(2).
d. KERZNER DEFENDANTS purchase, sell and/or lease tangible and intangible
personal property through brokers, jobbers, wholesalers or distributors to persons,
firms and corporations in Florida and, therefore, is conclusively presumed to be both
engaged in substantial and not isolated activities in Florida and operating,
conducting, engaging in, or carrying on a business or business venture in Florida
pursuant to Fla. Stat. §48.181(3).
18. Further, KERZNER DEFENDANTS (and their former entities, Sun International) have used
both the Miami-Dade Circuit Court and the United States District Court for their collections,
casino endeavors and breach of contract disputes.
19. In these multiple instances of litigation, KERZNER (and its former corporate identities) filed
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suit as the Plaintiff and, therefore, not only submitted itself to the jurisdiction of the United
States courts, they sought to avail themselves of it.
20. In multiple instances, this Court has held jurisdiction and venue are proper in personal injury
and tort related claims. As examples:
a. KERZNER DEFENDANTS had final judgment entered against it after a trial in
Miami-Dade County Circuit Court in the Case of Wagner v. Sun International Hotels
Limited, et al., Case No. 95-19988 (Judge Goldman), which involved a Dade County
resident who sued KERZNER for using his modeling photographs without his
permission and in sending brochures using his photographs to travel agencies in
Florida.
b. KERZNER DEFENDANTS were successfully sued in the Circuit Court of the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida, in the cases of
Postell v. Sun International Resorts, Inc., Case No. 99-11601 CA 05, and Emery v.
Sun International Resorts, et al, Case No. 99-10892 CA 01. In each of these cases,
it was alleged that KERZNER used the plaintiffs’ modeling photographs without
their permission. In each of these cases, KERZNER contested personal jurisdiction
over them by the Dade County Court, but later withdrew the objection as
memorialized in an Agreed Order dated June 13, 2000, in the Emery case.
KERZNER has proceeded to file answers and affirmative defenses in both Emery and
Postell.
c. KERZNER has been sued for using models’ photographs without their consent in the
cases of Delvecchio v. Sun International Resorts, Inc., et al, Case No. 95-19989 CA
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05; Muenzner v. Sun International Resorts, Inc., et al., Case No. 99-11742 CA 04;
and Wilder v. Sun International Resorts, Inc., et al., Case No. 99-11716 CA 27. All
of these actions were filed in the Circuit Court of the Eleventh Judicial Circuit in and
for Miami-Dade County, Florida, and in none of these cases was the “absence” of
personal jurisdiction raised as a defense.
d. KERZNER DEFENDANTS were specifically found to be doing business in the
Southern District of Florida in Meier v. Sun International Hotels, Ltd., et al, United
States Court of Appeals for the 11 Circuit, No. 01-14431, Sun Trust Bank, Miami,th
etc., v. Sun International Hotels Limited, et al., Case No. 00-3741-Civ-Huck; and
Ward v. Kerzner International Hotels Limited, et al., Case Number 03-23087-Civ-
Jordan/Brown.
e. KERZNER was sued in the United States District Court for the Southern District of
Florida for personal injury by guests of the Atlantis Hotel in the following negligent
security (sexual assault) cases: Doe v. Sun International Hotels Limited, et al., Case
No. 97-3359-CIV-GOLD (defendant’s motion to dismiss for lack of jurisdiction and
forum non-conveniens denied) (Sun International is now Kerzner); Bostrom v.
Kerzner, et al., Case No. 07-21217-CIV-HUCK (settled); and Larsen v. Kerzner, et
al., Case No. 08-22031-CIV-MORENO/TORRES (settled). In none of these cases
did KERZNER contest the Court’s personal jurisdiction over it.
21. KERZNER’S Chief Operating Officer, Bonnie Biumi, has an office in Plantation, Florida.
22. KERZNER’S national sales office is based in Plantation, Florida, at the above-referenced
South Florida address.
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23. KERZNER’S addresses in France, Germany, Japan, Mauritius, the United Kingdom, and
Republic of South Africa are listed on the back of its marketing brochure, along with its sole
United States address identified as 1000 South Pine Island Road, Plantation, Florida 33324.
24. KERZNER DEFENDANTS, primarily through Kerzner International Resorts, Inc., a Florida
corporation, advertises and otherwise extensively markets the Atlantis Resort in Florida via
radio, television, billboard, and direct mailings originating from its Plantation office.
25. KERZNER has a website, to-wit: www.atlantis.com containing multiple local (Florida)
contacts for KERZNER properties. All have telephone numbers which are handled from the
Plantation, Florida, office.
26. KERZNER DEFENDANTS regularly receive mail and correspondence at the Plantation
office.
27. KERZNER DEFENDANTS’ officers, employees and supervisors, who regularly work at the
at the Atlantis Resort in Paradise Island, Bahamas, attend meetings at the Plantation address.
28. KERZNER DEFENDANTS direct potential investors to contact it at the Plantation address.
29. At all material times, KERZNER dictates the standards and practices for the operation of the
Atlantis Resort, and KERZNER DEFENDANTS monitors and oversees the implementation
of these standards of operation by Defendant, KERZNER, and its subsidiaries.
30. In turn, KERZNER BAHAMAS monitors and oversees the implementation of KERZNER’S
standards of operation on a daily basis by employees of its subsidiaries.
31. KERZNER DEFENDANTS, either personally or through Kerzner International Resorts, Inc.,
sells entertainment/travel and vacation packages persons, including Floridians.
32. KERZNER DEFENDANTS have bank accounts in the State of Florida in its name and from
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which the direct employees of Defendant, Kerzner International Resorts, Inc., are able to
make deposits and write checks against and in payment of various vendors in the United
States and Florida for items purchased for use at the Atlantis Resort, e.g., food, china, linens,
bedding, etc.
33. KERZNER DEFENDANTS have had bank accounts at the Miami, Florida, branch of City
National Bank.
34. BOBBY FLAY’S MESA GRILL BAHAMAS (hereinafter MESA GRILL) is and was a
restaurant chain operating in the Atlantis Resort.
35. The Bobby Flay and “Mesa” brand names are used for restaurants and products sold
nationwide.
36. Specifically, products and goods branded with the Bobby Flay name are sold throughout
Florida under both the Mesa brand name and Bobby Flay’s brand.
37. Bobby Flay is a nationally renowned chef and sells his food products nationally online and
his kitchen wares through Kohl’s stores throughout the country under the Bobby Flay brand
name.
38. In Florida alone, Kohl’s sells Bobby Flay branded kitchenware through multiple stores in 48
cities throughout the state.
39. On or about June 18 2009, Plaintiff, AMY HOWARD, dined at the Bobby Flay’s Mesath
Grill at Atlantis, where she contracted ciguatera poisoning from eating fish.
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COUNT I NEGLIGENCE OF KERZNER DEFENDANTS
40. At all times material hereto, KERZNER DEFENDANTS, personally or through subsidiaries
and agents within their control, owned, operated and managed the Atlantis Resort.
41. At all times material hereto, KERZNER DEFENDANTS, owed Plaintiff a duty to use
reasonable care in the selection, sale and distribution of fish to its guests, the observance of
which would have prevented AMY HOWARD from contracting a dangerous form of food
poisoning.
42. KERZNER DEFENDANTS breached this duty by selecting, selling and distributing fish
known to carry ciguatoxins.
43. KERZNER DEFENDANTS had a further duty to ensure that restaurants on resort property
did not select, sell or distribute fish known to carry ciguatoxins.
44. KERZNER DEFENDANTS breached that duty by allowing MESA GRILL to select, sell and
distribute fish containing ciguatoxins.
45. KERZNER DEFENDANTS were in a better position to know the dangers of consuming fish
such as grouper which may carry ciguatoxins capable of poisoning a guest, such as AMY
HOWARD.
46. As a direct and proximate cause of the aforementioned acts and omissions, AMY HOWARD
contracted ciguatera fish poisoning and bodily injuries as a result of said poisoning.
WHEREFORE, Plaintiffs AMY HOWARD and KENNETH HOWARD, demand judgment
against KERZNER DEFENDANTS for damages, interest and costs associated with this action.
COUNT II NEGLIGENCE OF MESA GRILL
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47. At all times material hereto, MESA GRILL, owed Plaintiff a duty to use reasonable care
in the selection, sale and distribution of fish to its patrons, the observance of which would
have prevented AMY HOWARD from contracting a dangerous form of food poisoning.
48. MESA GRILL breached this duty by selecting, selling and distributing fish known to
carry ciguatoxins.
49. MESA GRILL was in a better position to know the dangers of consuming fish such as
grouper which may carry ciguatoxins capable of poisoning a guest, such as AMY
HOWARD.
50. MESA GRILL had a duty to warn AMY HOWARD of the dangers of eating fish such as
grouper, including ciguatera poisoning.
51. MESA GRILL breached that duty by failing to warn AMY HOWARD of the dangers of
eating grouper.
52. As a direct and proximate cause of the aforementioned acts and omissions, AMY
HOWARD contracted ciguatera fish poisoning and bodily injuries as a result of said
poisoning.
WHEREFORE, AMY HOWARD and KENNETH HOWARD demand judgment against
MESA GRILL for damages, interest and costs associated with this action.
DAMAGES
Plaintiff, AMY HOWARD, sustained pain and suffering, mental anguish, emotional distress,
permanent injury, loss of wages, incurred medical expenses, and has sustained a loss of the
capacity for the enjoyment of life in the past and will incur these losses in the future.
WHEREFORE, Plaintiff AMY HOWARD demands judgment against KERZNER
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DEFENDANTS and MESA GRILL, for damages, interest and costs associated with this action.
LOSS OF CONSORTIUM
53. At all times material hereto, Plaintiff, KENNETH HOWARD, was and is the lawful spouse
of Plaintiff, AMY HOWARD.
54. As a direct, proximate and foreseeable result of the above described acts or omissions of
Defendants, Plaintiff, KENNETH HOWARD, has in the past and will in the future suffer
diminishment of her husband’s companionship, society, and consortium and has in the past
and will in the future incur medical expenses for his care and treatment. These damages
were the direct and proximate result of the acts and omissions of Defendants.
WHEREFORE, Plaintiff AMY HOWARD demands judgment against KERZNER
DEFENDANTS and MESA GRILL, for damages, interest and costs associated with this action.
DEMAND FOR JURY TRIAL
Plaintiffs demand a jury trial.
DATED this11th day of June, 2012.
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LAW OFFICES OF ROBERT L. PARKS, P.L. Counsel for Plaintiff 2121 Ponce de Leon Boulevard, Suite 505 Coral Gables, Florida 33134 Telephone: 305-445-4430 Facsimile: 305-445-4431
By /s/ Robert L. Parks Robert L. Parks, Esq. Florida Bar No. 61436
Case 1:12-cv-22184-FAM Document 1 Entered on FLSD Docket 06/11/2012 Page 12 of 12
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO: 12-CV-22184-FAM
AMY HOWARD, and KENNETH HOWARD, her husband Plaintiffs, v. KERZNER INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL BAHAMAS LIMITED, a Bahamian company, ISLAND HOTEL COMPANY LIMITED, a Bahamian company; and PARADISE ISLAND LIMITED, a Bahamian company. Defendants. ________________________________________/
DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT FOR DAMAGES
Defendants, Kerzner International Limited, Kerzner International Bahamas Limited,
Island Hotel Company Limited, and Paradise Island Limited (collectively “Defendants”), hereby
file this Answer and Affirmative Defenses to Plaintiff’s Complaint for Damages (“Complaint”)
and state as follows:
As a preliminary matter, pursuant to the agreement of the parties, Plaintiffs have
voluntarily dismissed Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit
without prejudice. See DE 11. As such, no response from Mesa Grill is required. To the extent a
response is required, Mesa Grill denies the allegations in the Complaint and adopts the
affirmative defenses herein.
1. Admitted that this purports to be an action against Defendants, but denied that any
damages exist or that damages exceed the jurisdictional requirement, exclusive of costs and
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interest.
2. Denied.
3. Without knowledge and therefore denied.
4. Admitted that long ago it was known by that name.
5. Denied as phrased.
6. Denied.
7. Denied as phrased.
8. Denied.
9. Denied as phrased.
10. Denied as phrased.
11. Denied as phrased.
12. Denied as phrased.
13. Admitted.
14. Admitted it is the operator of Atlantis, otherwise denied as phrased.
15. Denied as phrased.
16. Denied.
17. Denied.
18. Denied as phrased.
19. Denied as phrased.
20. Denied as phrased.
21. Admitted only that Bonnie Biumi has had an office in Plantation, Florida,
otherwise denied as phrased.
22. Denied as phrased.
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23. Denied as phrased.
24. Admitted only that Atlantis Resort is advertised in Florida, otherwise denied as
phrased.
25. Denied as phrased.
26. Denied as phrased.
27. Denied as phrased.
28. Denied as phrased.
29. Denied.
30. Denied as phrased.
31. Denied as phrased.
32. Denied as phrased.
33. Denied as phrased.
34-38 Pursuant to the agreement of the parties, Plaintiffs have voluntarily dismissed
Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit without prejudice. As such,
no response from Mesa Grill is required for paragraphs 34 through 38. To the extent a response
is required, Mesa Grill denies the allegations in paragraphs 34 through 38.
39. Admitted only that Amy Howard alleges she suffered personal injury as a result
of eating fish at Mesa Grill, otherwise denied.
COUNT I NEGLIGENCE OF KERZNER DEFENDANTS
40. Denied as phrased.
41. Denied as phrased.
42. Denied.
43. Denied as phrased.
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44. Denied.
45. Denied.
46. Denied.
COUNT II NEGLIGENCE OF MESA GRILL
47-52 Pursuant to the agreement of the parties, Plaintiffs have voluntarily dismissed
Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit without prejudice. As such,
no response from Mesa Grill is required for paragraphs 47 through 52. To the extent a response
is required, Mesa Grill denies the allegations in paragraphs 47 through 52.
DAMAGES (Unnumbered). Denied.
LOSS OF CONSORTIUM
53. Unknown, therefore denied.
54. Denied.
DEFENDANTS’ AFFIRMATIVE DEFENSES
As separate and complete defenses, based upon information and belief, Defendants state
as follows:
FIRST AFFIRMATIVE DEFENSE
Defendants assert that this cause of action is subject to Terms and Conditions as
described on the Atlantis, Paradise Island, Resort website and the guest registration, including
but not limited to its forum selection clause which mandates The Bahamas as the only proper
forum for this dispute.
SECOND AFFIRMATIVE DEFENSE
Defendants assert that Amy Howard did not exercise ordinary care or caution to avoid the
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events or circumstances which caused her injuries; and that Amy Howard own failure to exercise
such care was the direct and proximate cause of her injuries.
THIRD AFFIRMATIVE DEFENSE
Defendants assert that Amy Howard own negligence and/or own conduct was the sole,
proximate cause of her injuries.
FOURTH AFFIRMATIVE DEFENSE
Defendants assert that the incident was the result of superseding, intervening, and/or
unforeseeable causes from which the Defendants had no duty to protect Amy Howard.
FIFTH AFFIRMATIVE DEFENSE
Defendants assert that any claims Amy Howard has against Defendants resulting from
any events occurring in The Bahamas shall be governed by and construed in accordance with the
laws of the Commonwealth of The Bahamas
SIXTH AFFIRMATIVE DEFENSE
Defendants assert that the Supreme Court of The Bahamas is the exclusive venue for any
claims Amy Howard has against Defendants resulting from any events occurring in The
Bahamas.
SEVENTH AFFIRMATIVE DEFENSE
Defendants assert that as a result of the conduct, acts or omissions of Amy Howard as
asserted in the preceding and subsequent Affirmative Defenses (including but not limited to the
Second and Third Affirmative Defenses), that Amy Howard is estopped from claiming the
damages alleged in the Complaint.
EIGHTH AFFIRMATIVE DEFENSE
Defendants assert that Amy Howard had actual knowledge and/or notice of any alleged
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dangerous condition, if any, and realized and appreciated the
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