UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-22006-GAYLES/OTAZO-REYES

ESTERINA GIULIANI,

Plaintiff,

v. 

NCL (BAHAMAS) LTD., a Bermuda 

Company doing business as Norwegian

Cruise Line, ALASKA X, and XYZ 

CORPORATION(S),

Defendants.

______________________________________/

ORDER

THIS CAUSE comes before the Court on Defendant Alaska X’s Motion to Dismiss the 

Plaintiff’s Amended Complaint for Lack of Personal Jurisdiction (the “Motion”) [ECF No. 43]. 

The Court has considered the Motion and the record and is otherwise fully advised. For the reasons 

that follow, the Motion is granted.

BACKGROUND1

I. Factual Background

This case arises from injuries Plaintiff Esterina Giuliani suffered during a horseback riding 

excursion (the “shore excursion”) operated by Alaska X while Plaintiff was a passenger on the 

NCL Bliss, a cruise ship operated by Defendant NCL (Bahamas) Ltd. (“NCL”). Plaintiff is a citizen 

1 As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff’s First Amended Complaint as 

true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 1 of 19
2

of the state of New York. NCL is a foreign entity with its principal place of business in Florida.2

Alaska X is a corporation that exists under the laws of Alaska and maintains its principal place of 

business in Alaska. See [ECF No. 43-1 at 1 ¶¶ 5, 7]. NCL and Alaska X entered into a Standard 

Shore Excursion Agreement (the “Agreement”) for NCL to market and sell to its passengers shore 

excursions provided by Alaska X in Skagway, Alaska. See [ECF No. 43-1]. Among the 

Agreement’s provisions is a choice-of-law clause designating Florida law as the governing law 

and subjecting the parties to the exclusive jurisdiction of the courts of Florida. 

On July 6, 2019, Plaintiff booked and paid for Alaska X’s shore excursion through NCL’s

app that she would partake in during her trip on the NCL Bliss. See [ECF No. 26-1]. On August 

28, 2019, while Plaintiff participated in the shore excursion, another participant’s horse provoked 

Plaintiff’s horse and the horses began to fight. Plaintiff was thrown off her horse and landed on 

the ground, resulting in severe injuries including multiple nondisplaced fractures of her hips and 

pelvis, debilitating back pain, bursitis, hematoma, and labral tears. Plaintiff’s injuries were 

worsened by the lack of appropriate medical care from the ship doctor on board the NCL Bliss.

II. Procedural History

On May 13, 2020, Plaintiff filed her original Complaint against NCL and Alaska X. [ECF 

No. 1]. On August 6, 2020, NCL filed a Motion to Dismiss the original Complaint. [ECF No. 23]. 

On August 20, 2020, Plaintiff filed her eleven-count First Amended Complaint against NCL and 

Alaska X. [ECF No. 26]. On September 14, 2020, Alaska X filed the instant Motion, arguing that 

the Court lacks specific personal jurisdiction, general personal jurisdiction, or jurisdiction under 

Federal Rule of Civil Procedure 4(k)(2) over Alaska X. [ECF No. 43].

2 The Court notes that “NCL is a Bermuda company with its principal place of business in Florida.” Caron v. NCL 

(Bahamas), Ltd., 910 F.3d 1359, 1365 (11th Cir. 2018).

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 2 of 19
3

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a 

claim against it for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “A plaintiff seeking to 

establish personal jurisdiction over a nonresident defendant ‘bears the initial burden of alleging in 

the complaint sufficient facts to make out a prima facie case of jurisdiction.’” Louis Vuitton 

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (quoting United Techs. Corp. v. 

Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). When the defendant submits evidence in support 

of its challenge to personal jurisdiction, “the burden traditionally shifts back to the plaintiff to 

produce evidence supporting jurisdiction.” Id. (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th 

Cir. 1990)). “Where the plaintiff’s complaint and supporting evidence conflict with the defendant’s 

affidavits, the court must construe all reasonable inferences in favor of the plaintiff,” Diamond 

Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010) (citation 

omitted), and still must “accept the facts alleged in the complaint as true, to the extent they are 

uncontroverted by the defendant’s affidavits,” Madara, 916 F.2d at 1514.

A federal court sitting in diversity undertakes a two-step inquiry in determining whether 

personal jurisdiction over a nonresident defendant exists. First, the court must determine whether 

the exercise of jurisdiction is appropriate under the state long-arm statute. Second, the court must 

determine whether exercising personal jurisdiction over the nonresident defendant violates the Due 

Process Clause of the Fourteenth Amendment to the United States Constitution. Mut. Serv. Ins. 

Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). See also Associated Transp. Line, 

Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1072–74 (11th Cir. 

1999) (applying the same analytical framework in a case brought under admiralty jurisdiction).

That is, the court must determine whether the nonresident defendant has such minimum contacts 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 3 of 19
4

with the forum such that exercising personal jurisdiction does not offend traditional notions of fair 

play and substantial justice. Mut. Serv. Ins. Co., 358 F.3d at 1319.

DISCUSSION

In its Motion, Alaska X argues that the Court cannot exercise personal jurisdiction over it, 

relying on the Declaration of Erin Redington (the “Declaration”), Alaska X’s General Manager. 

See [ECF No. 43-1]. First, Alaska X argues that specific personal jurisdiction does not exist 

because it has not engaged in any activity in the state of Florida and because Plaintiff fails to allege 

facts that establish a nexus between her causes of action and Alaska X’s alleged activities in 

Florida. [ECF No. 43 at 2]. Second, Alaska X argues that general personal jurisdiction does not 

exist because Alaska X does not have the necessary minimum contacts with the state of Florida. 

Id. Third, Alaska X argues that personal jurisdiction cannot be established pursuant to Federal 

Rule of Civil Procedure 4(k)(2). Id. at 3. The Court addresses each argument in turn.

I. Florida’s Long-Arm Statute

Florida’s long-arm statute provides in pertinent part:

(1)(a) A person, whether or not a citizen or resident of this state, who personally or 

through an agent does any of the acts enumerated in this subsection thereby submits 

himself or herself . . . to the jurisdiction of the courts of this state . . . .

. . . .

(2) A defendant who is engaged in substantial and not isolated activity within this 

state, whether such activity is wholly interstate, intrastate, or otherwise, is subject 

to the jurisdiction of the courts of this state, whether or not the claim arises from 

that activity.

Fla. Stat. § 48.193(1)(a), (2). Under Florida’s long-arm statute, a defendant can thus be subject to 

either: (1) specific personal jurisdiction—jurisdiction in suits arising out of or relating to the 

defendant’s contact with Florida; or (2) general personal jurisdiction—jurisdiction over any claims 

against a defendant, notwithstanding any connection vel non with Florida, if the defendant engages 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 4 of 19
5

in “substantial and not isolated activity” in Florida. McCullough v. Royal Caribbean Cruises, Ltd., 

268 F. Supp. 3d 1336, 1343 (S.D. Fla. 2017) (quoting Fla. Stat. § 48.193(1)(a), (2)). “Irrespective 

of the method, ‘Florida’s long-arm statute is to be strictly construed . . . [and] federal courts are 

required to construe it as would the Florida Supreme Court.’” Serra-Cruz v. Carnival Corp., 400 

F. Supp. 3d 1354, 1358 (S.D. Fla. 2019) (quoting Carmouche v. Carnival Corp., 36 F. Supp. 3d 

1335, 1340 (S.D. Fla. 2014), aff’d sub nom. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201 

(11th Cir. 2015)). Alaska X argues that this Court has neither specific nor general personal 

jurisdiction.

A. Specific Personal Jurisdiction Pursuant to Florida Statute § 48.193(1)(a)

Specific personal jurisdiction “authorizes jurisdiction over causes of action arising from or 

related to the defendant’s actions within Florida and concerns a nonresident defendant’s contacts 

with Florida only as those contacts relate[] to the plaintiff’s cause of action.” Louis Vuitton

Malletier, S.A., 736 F.3d at 1352 (citing Oldfield v. Pueblo de Bahia Lora, S.A., 558 F.3d 1210, 

1220 n.27 (11th Cir. 2009)). Alaska X argues that this Court cannot exercise specific personal 

jurisdiction over it because Alaska X has not engaged in any activity within the state of Florida 

and because Plaintiff fails to establish the requisite nexus between her causes of action and Alaska 

X’s activities in Florida. [ECF No. 43 at 2]. Plaintiff does not—and cannot—allege that Alaska X 

committed the tortious acts in Florida; rather, Plaintiff argues that specific personal jurisdiction 

exists over Alaska X pursuant to Florida Statute § 48.193(1)(a)(4) and (9). [ECF No. 51 at 3]. The 

Court finds that it cannot exercise specific personal jurisdiction over Alaska X.

1. Florida Statute § 48.193(1)(a)(9)

In Florida, personal jurisdiction may be exercised over a defendant who enters “into a 

contract that complies with [Florida Statute §] 685.102.” Fla. Stat. § 48.193(1)(a)(9). In order to 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 5 of 19
6

determine whether jurisdiction is conferred under § 48.193(1)(a)(9), the Court must consider two 

addition statutes—Florida Statute § 685.101 and § 685.102. First, Florida Statute § 685.102 

provides in pertinent part:

Notwithstanding any law that limits the right of a person to maintain an action or 

proceeding, any person may, to the extent permitted under the United States 

Constitution, maintain in this state an action or proceeding against any person or 

other entity residing or located outside this state, if the action or proceeding arises 

out of or relates to any contract, agreement, or undertaking for which a choice of 

the law of this state, in whole or in part, has been made pursuant to [Florida Statute

§] 685.101 and which contains a provision by which such person or other entity 

residing or located outside this state agrees to submit to the jurisdiction of the courts 

of this state.

Fla. Stat. § 685.102(1). Second, Florida Statute § 685.101 provides in pertinent part that:

The parties to any contract, agreement, or undertaking, . . . in consideration of or 

relating to any obligation arising out of a transaction involving in the aggregate not 

less than $250,000 . . . may, to the extent permitted under the United States 

Constitution, agree that the law of this state will govern such contract, agreement, 

or undertaking, . . . whether or not such contract, agreement, or undertaking bears 

any relation to this state.

Fla. Stat. § 685.101(1). However, § 685.101 “does not apply to any contract, agreement, or 

undertaking[:]”

[W]hich does not bear a substantial or reasonable relation to this state in which 

every party is either or a combination of:

1. A resident and citizen of the United States, but not of this state; or 

2. Incorporated or organized under the laws of another state and does not maintain 

a place of business in this state.

Id. at (2)(a). Thus, personal jurisdiction may be established in Florida through a contract that: (1) 

“include[s] a choice of law provision designating Florida Law as the governing law;” (2) 

“include[s] a provision whereby the non-resident agrees to submit to the jurisdiction of the courts 

of Florida;” (3) “involve[s] consideration of not less than $250,000;” (4) does “not violate the 

United States Constitution;” and (5) “either bear[s] a substantial or reasonable relation to Florida 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 6 of 19
7

or [has] at least one of the parties be a resident of Florida or incorporated under its laws.” 

Jetbroadband WV, LLC v. MasTec N. Am., Inc., 13 So. 3d 159, 162 (Fla. 3d DCA 2009).

Plaintiff’s First Amended Complaint states that specific personal jurisdiction may be 

exercised over Alaska X because “the contract between NCL and [Alaska X] meets all 

requirements to satisfy a finding of specific jurisdiction under Florida Statute § 48.193(1)(a)(9).” 

[ECF No. 26 at 2–3 ¶ 7]. Specifically, Plaintiff alleges that the Agreement:

(a) contains a choice-of-law clause designating Florida law as the governing law; 

(b) contains a provision whereby [Alaska X] agree[s] to submit to the exclusive 

jurisdiction of the courts of Florida; (c) involves consideration of not less than 

$250,000 or relate[s] to an obligation arising out of a transaction involving in the 

aggregate not less than $250,000; (d) does not violate the U.S. Constitution; and (e) 

has at least one party of the contract that is a resident of Florida or incorporated 

under the laws of Florida.

Id.3 Such allegations would be sufficient for NCL—as a party to the Agreement—to establish 

personal jurisdiction over Alaska X. See §§ 685.101 and 685.102, Florida Statutes. But Plaintiff is 

not a signatory to the Agreement; rather, Plaintiff seeks to assert her claims under the Agreement 

as a third-party beneficiary. [ECF No. 51 at 6]. 

To establish that she is a third-party beneficiary to the Agreement, Plaintiff must allege: 

(1) “the existence of a contract to which Plaintiff is not a party;” (2) “an intent, either expressed 

by the parties or in the provision of the contract, that the contract primarily and directly benefit 

Plaintiff;” (3) “breach of that contract by one of the parties;” and (4) “damages to Plaintiff resulting 

3 In her Response to the Motion, Plaintiff argues that the fifth requirement is met because “NCL maintains its principal 

place of business in Florida . . . .” [ECF No. 51 at 4]. Plaintiff, however, misquotes Jetbroadband WV, LLC v. MasTec 

N. Am., Inc., to suggest that the fifth requirement may be satisfied where a party is either incorporated under the laws 

of Florida or maintains its principal place of business in Florida. See [ECF No. 51 at 4]. This is incorrect. “[A]s long 

as one of the parties is a resident of Florida or incorporated under its laws, and the other statutory requirements are 

met, sections 685.101–.102 operate irrespective of whether the underlying contract bears any relation to Florida and 

notwithstanding any law to the contrary.” Jetbroadband WV, LLC, 13 So. 3d at 162 (emphasis added) (citations 

omitted). Here, neither NCL nor Alaska X are incorporated in the state of Florida. [ECF No. 26 at 1 ¶¶ 2–3]; [ECF 

No. 43-1 at 1 ¶ 6]. However, because NCL “bear[s] a substantial or reasonable relation to Florida,” the fifth 

requirement is met. Jetbroadband WV, LLC, 13 So. 3d 162.

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 7 of 19
8

from the breach.” Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1279, 1398 (S.D. Fla. 2014)

(citing Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352, 1360–61 (S.D. Fla. 2013)). When 

determining whether a party is a third-party beneficiary to an agreement, “[t]he intent of the parties 

is the key to determining whether a third party is an intended . . . or only an incidental beneficiary.” 

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005) (citation omitted). See also id.

(noting that incidental beneficiaries “have no enforceable rights under a contract.” (citation and 

internal quotation marks omitted)). 

“For a third party to have a legally enforceable right under the contract, the benefit to the 

third party must be the ‘direct and primary object of the contracting parties.’” Aronson, 30 F. Supp. 

3d at 1398 (quoting Bochese, 405 F.3d at 982). Moreover, “the parties’ intent to benefit the third 

party ‘must be specific and must be clearly expressed in the contract in order to endow the third 

party beneficiary with a legally enforceable right,’ and ‘incidental or consequential benefit’ to a 

third party is insufficient to sustain a claim.” Id. (quoting Bochese, 405 F.3d at 982); Serra-Cruz, 

400 F. Supp. 3d at 1362 (“For a contract to intend to benefit a third party, such intent must be 

specific and must be clearly expressed in the contract.” (quoting Heller v. Carnival Corp., 191 F. 

Supp. 3d 1352, 1365 (S.D. Fla. 2016))). “Where the contract is designed solely for the benefit of 

the formal parties thereto, a third person cannot maintain an action thereon, even though such third 

person might derive some incidental or consequential benefit from its enforcement.” Synder v. 

Royal Caribbean Cruises Ltd., --- F. Supp. 3d ---, No. 20-CIV-21429, 2021 WL 1920297, at *3 

(S.D. Fla. May 13, 2021) (quoting Blu-J, Inc. v. Kemper C.P.A. Grp., 916 F.2d 637, 640 (11th Cir. 

1990)).

The Court finds that Plaintiff fails to establish that she is a third-party beneficiary to the 

Agreement such that personal jurisdiction can be exercised here over Alaska X pursuant to Florida 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 8 of 19
9

Statute § 48.193(1)(a)(9). First, the language of the Agreement is clear that “[o]ther than as 

expressly set forth herein, this Agreement shall not be deemed to provide third parties with any 

remedy, claim, or right of action.” [ECF No. 43-1 at 13 ¶ 27]. See also Wolf v. Celebrity Cruises, 

Inc., 683 F. App’x 786, 798 (11th Cir. 2017) (per curiam) (finding agreement with similar language 

to expressly not benefit any third party); Synder, 2021 WL 1920297, at *3 (finding similar 

language to not confer third-party beneficiary status on passenger). As has been said repeatedly in 

this Circuit, “a plaintiff may not use the Agreement’s consent to jurisdiction clause via a meritless 

third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal injury 

case[,] especially where, as here, the Agreement includes an express disclaimer of the existence of 

third-party beneficiaries.” Johnson v. Royal Caribbean Cruises Ltd., 474 F. Supp. 3d 1260, 1267 

(S.D. Fla. 2020) (quoting Serra-Cruz, 400 F. Supp. 3d at 1363).

Second, the Declaration makes clear that Alaska X “never entered into any contracts with 

[NCL] (including the . . . Agreement) with the intent to primarily or directly benefit third parties, 

including but not limited to, cruise ship passengers such as Plaintiff . . . .” [ECF No. 43-1 at 

4 ¶ 40]. Plaintiff fails to offer evidence to rebut this declaration. See Storm v. Carnival Corp., No. 

20-CIV-22227, 2020 WL 7415835, at *8 (S.D. Fla. Dec. 18, 2020) (noting the plaintiff’s failure 

to rebut excursion company’s declaration). Additionally, contrary to what Plaintiff suggests, 

“third-party beneficiary status is not created by the absence of an express disclaimer [in the 

Agreement] to the contrary.” Serra-Cruz, 400 F. Supp. 3d at 1362.

Plaintiff describes the various provisions of the Agreement to argue that “Alaska X and 

NCL expressly set forth in their contract that their contract is for the benefit of NCL’s passengers 

. . . .” [ECF No. 51 at 8]. However, “[n]one of these purported provisions . . . supports a plausible 

inference that the contract is intended to primarily and directly benefit [NCL’s] passengers 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 9 of 19
10

generally, never mind [Plaintiff] . . . specifically. At most, any benefit conferred on [Plaintiff] is 

merely incidental.” Zhang v. Royal Caribbean Cruises, Ltd., No. 19-CIV-20773, 2019 WL 

8895223, at *6 (S.D. Fla. Nov. 15, 2019). See also Synder, 2021 WL 1920297, at *3 (finding that 

“general duties and obligations do not support a plausible inference that the Agreement was 

intended to primarily benefit [cruise operator’s] passengers; rather, they demonstrate [the 

excursion company’s] intent to abide by adequate business standards in its relationship with [the 

cruise operator]”); Serra-Cruz, 400 F. Supp. 3d at 1372–73 (finding that provisions of cruise 

operator and excursion company’s agreement did not “sufficiently plead that the contract was 

intended to primarily and directly benefit Plaintiff”). “Indeed, allegations that a contract requires 

excursion operators to maintain insurance and exercise reasonable care, fail to satisfy the pleading 

requirements because they do not clearly and specifically express a [d]efendant[’s] intent to 

primarily and directly benefit a [p]laintiff[].” Zhang, 2019 WL 8895223, at *7 (alteration in 

original) (citations and internal quotation marks omitted). Therefore, Alaska X cannot be subject 

to the Court’s specific personal jurisdiction pursuant to Florida Statute § 48.193(1)(a)(9).

2. Florida Statute § 48.193(1)(a)(4)

In Florida, personal jurisdiction may be exercised over a defendant who “[c]ontract[s] to 

insure a person, property, or risk located within this state at the time of contracting.” Fla. Stat. 

§ 48.193(1)(a)(4). Plaintiff’s First Amended Complaint states that specific personal jurisdiction 

may be exercised over Alaska X because it “agreed to indemnify NCL for the claims made in this 

Complaint,” [ECF No. 26 at 4 ¶ 8(f)], and “contract[ed] to insure a person or risk located within 

the State of Florida at the time of contracting” with NCL, [ECF No. 26 at 5 ¶ 8(m)]. See also [ECF 

No. 51 at 18] (“ALASKA X subjected itself to the jurisdiction of this Court by contracting to 

insure NCL in the Agreement.” (citations omitted)).

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 10 of 19
11

The Court finds that Plaintiff’s arguments based on Florida Statute § 48.193(1)(a)(4) are

also unavailing to establish specific personal jurisdiction over Alaska X. First, Plaintiff fails to 

offer evidence that rebuts the Declaration, which states that Alaska X “has never entered into a 

contract to insure any individual and/or entity within the State of Florida.” [ECF No. 43-1 at 

2 ¶ 24]. See also Storm, 2020 WL 7415835, at *9 (finding claim brought under Florida Statute 

§ 48.193(1)(a)(4) failed where Plaintiff failed to rebut defendant’s declaration). Second, Plaintiff’s 

claims do not arise from the Agreement, a breach thereof, or any other contract. See Synder, 2021 

WL 1920297, at *4; Storm, 2020 WL 7415835, at *9. Rather, Plaintiff’s claims arise from injuries 

she suffered during a shore excursion in Skagway, Alaska. Therefore, Alaska X cannot be subject 

to the Court’s specific personal jurisdiction pursuant to Florida Statute § 48.193(1)(a)(4).

3. The Agreement’s Conferral-of-Jurisdiction Clause

The Court briefly notes that Plaintiff’s attempt to establish jurisdiction over Alaska X via 

the “conferral-of-jurisdiction” clause in the Agreement is also unavailing. [ECF No. 51 at 1–2]. 

The Agreement states in relevant part that:

The Parties hereby irrevocably submit, in any suit, action or proceeding arising out 

of or relating to this Agreement or any transaction contemplated hereby . . . , to the 

exclusive jurisdiction of the United States District Court for the Southern District 

of Florida or, if jurisdiction is not available therein, the jurisdiction of any court 

located in Miami-Dade County, Florida, and waive any and all objections to such 

jurisdiction or venue that they may have under the laws of any state or country, 

including without limitation, any argument that jurisdiction, situs and/or venue are 

inconvenient or otherwise improper.

[ECF No. 43-1 at 13 ¶ 23]. As previously noted, the Agreement also provides that “[o]ther than as 

expressly set forth herein, this Agreement shall not be deemed to provide third parties with any 

remedy, claim, or right of action.” Id. at 13 ¶ 27.

Plaintiff argues that Alaska X “has subjected itself to the jurisdiction of this Honorable 

Court, both through application of Florida law, and by voluntarily waiving the right to raise 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 11 of 19
12

personal jurisdiction as a defense in this case . . . .” [ECF No. 51 at 1]. The Court disagrees. As 

noted earlier, “a plaintiff may not ‘use the Agreement’s consent to jurisdiction clause via a 

meritless third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal 

injury case . . . .’” Johnson, 474 F. Supp. 3d at 1267 (quoting Serra-Cruz, 400 F. Supp. 3d at 1363). 

Here, the Agreement’s consent-to-jurisdiction clause expressly limits its application to “any suit, 

action or proceeding arising out of or relating to this Agreement or any transaction contemplated 

hereby . . . .” [ECF No. 43-1 at 13 ¶ 23] (emphasis added). The clause does not expressly provide 

for third-party claims. See Synder, 2021 WL 1920297, at *4. As Plaintiff is neither a party nor a 

third-party beneficiary to the Agreement, she cannot avail herself to the Agreement’s consent-tojurisdiction provision. Id. See also Carmouche, 36 F. Supp. 3d at 1341 (“Plaintiff is not a party to 

the shore excursion contract, and, therefore, may not be able to enforce the conferral of jurisdiction 

clause.”). Moreover, Plaintiff’s claims “arise from an incident that occurred during a shore 

excursion in [Skagway, Alaska]—not from the contractual relationship between” NCL and Alaska 

X. Synder, 2021 WL 1920297, at *4. Therefore, the consent-to-jurisdiction does not confer specific 

personal jurisdiction over Alaska X.

Because Plaintiff has not alleged that any tortious acts occurred in Florida and all her 

arguments must fail, the Court finds that it cannot exercise specific personal jurisdiction over 

Alaska X.

B. General Personal Jurisdiction Pursuant to Florida Statute § 48.193(2)

Alaska X argues that general personal jurisdiction cannot be exercised over it because it 

does not have any contacts with the state of Florida such that it would be “at home” in Florida. 

[ECF No. 43 at 2]. In the First Amended Complaint, Plaintiff provides an extensive list of general 

activities she alleges reflects Alaska X’s “general course of business activity in the State [of 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 12 of 19
13

Florida] for pecuniary benefit.” [ECF No. 26 at 7 ¶ 16] (quoting Stubbs v. Wyndham Nassau Resort 

& Crystal Palace Casino, 447 F.3d 1357, 1361 (11th Cir. 2006)). Plaintiff alleges that these 

activities include: (1) maintaining at least one office in Florida; (2) reaching out to cruise lines in 

Florida and establishing long term business partnerships with them; (3) contracting with cruise 

lines in Florida to provide excursions to cruise line passengers; (4) entering into partnerships 

and/or joint ventures with cruise lines in Florida to provide excursions to cruise line passengers; 

(5) agreeing to insure and/or indemnify cruise lines in Florida; (6) deriving substantial revenues 

from business with cruise lines in Florida; and (7) having a registered agent in Florida. Id. at 

5–6 ¶ 10. Plaintiff argues that these activities are “the type of continuous and systematic general 

business contact[s] with Florida that satisf[y] the requirements” of general personal jurisdiction 

pursuant to Florida Statute § 48.193(2). Id. at 7 ¶ 16. The Court finds that it cannot exercise general 

personal jurisdiction over Alaska X.

Because the reach of the general personal jurisdiction provisions of the Florida long-arm 

statute is coextensive with the limits of the Due Process Clause, the Court need only determine 

whether its exercise of general personal jurisdiction over Alaska X “would exceed constitutional 

bounds.” Carmouche, 789 F.3d at 1204 (quoting Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 

2010)); McCullough, 268 F. Supp. 3d at 1343. “The Due Process Clause permits personal 

jurisdiction so long as the nonresident defendant has certain minimum contacts with the forum 

such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial 

justice.’” McCullough, 268 F. Supp. 3d at 1343 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 

310, 316 (1945)). General personal jurisdiction may be exercised over a corporate defendant based 

on its: (1) place of incorporation; or (2) principal place of business. Daimler AG v. Bauman, 571 

U.S. 117, 137 (2014). To subject a corporate defendant to general personal jurisdiction in any other 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 13 of 19
14

forum, the corporation’s affiliations with that forum must be “so ‘continuous and systematic’ as to 

render [it] essentially at home” there. Id. at 138 (quoting Goodyear Dunlop Tires Operations, S.A. 

v. Brown, 564 U.S. 915, 919 (2011)). See also McCullough, 268 F. Supp. 3d at 1344 (“In other 

words, if the corporation does not act in the forum in such a way that the forum is regarded as 

essentially equivalent to its place of incorporation or principal place of business, general [personal] 

jurisdiction over a corporation would violate due process.”). This only occurs in “exceptional cases

. . . .” Daimler AG, 571 U.S. at 139 n.19.

“To establish whether a foreign defendant was engaged in ‘substantial and not isolated 

activities’ in Florida, the defendant’s activities must be ‘considered collectively and show a general 

course of business activity in the state for pecuniary benefit.’” Aronson, 30 F. Supp. 3d at 1386 

(quoting Stubbs, 447 F.3d at 1361). See also Carmouche, 36 F. Supp. 3d at 1341 (“Florida courts 

have interpreted ‘substantial and not isolated activity’ to mean ‘continuous and systematic general 

business contact.’” (citation omitted)). This is a much higher threshold for a plaintiff than is 

necessary to support specific personal jurisdiction. See Aronson, 30 F. Supp. 3d at 1386 

(“[B]ecause general personal jurisdiction is based on contacts unrelated to the cause of action being 

litigated, the due process requirements for general jurisdiction must be assessed under a stricter 

standard than those for specific jurisdiction.” (citation and internal quotation marks omitted)); 

Storm, 2020 WL 7415835, at *9 (finding that conferral of general personal jurisdiction “presents 

a much higher threshold than the contacts necessary to support specific jurisdiction”). Thus, a 

foreign corporation’s contacts with the forum state:

[M]ust be so extensive to be tantamount to [a defendant] being constructively 

present in the state to such a degree that it would be fundamentally fair to require it 

to answer in [the forum state’s courts] in any litigation arising out of any transaction 

or occurrence taking place anywhere in the world.

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 14 of 19
15

Exhibit Icons, LLC v. XP Cos., LLC, 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009) (alterations in 

original) (quoting Baker v. Carnival Corp., No. 06-CIV-21527, 2006 WL 3360418, at *2 (S.D Fla. 

Nov. 20, 2006)).

The Court finds that Alaska X’s activities do not “closely approximate the activities that 

ordinarily characterize a corporation’s place of incorporation or principal place of business.” 

Carmouche, 789 F.3d at 1205. Although Plaintiff alleges that Alaska X has direct contacts with 

Florida, see [ECF No. 26 at 5–6 ¶ 10] (alleging that Alaska X maintains an office and registered 

agent in Florida), the Declaration makes clear that Alaska X has never maintained an office, 

registered agent, or any other direct connection to Florida, see, e.g., [ECF No. 43-1 at 2 ¶¶ 8, 13, 

15–17, 20–21, & 23]. Yet again, Plaintiff fails to bring forth any evidence to rebut these statements. 

See Zapata v. Royal Caribbean Cruises, Ltd., No. 12-CIV-21897, 2013 WL 1100028, at *2 (S.D. 

Fla. Mar. 15, 2013) (“When a plaintiff proffers no competent evidence to establish jurisdiction in 

opposition to the denials of the jurisdictional allegations contained in the defendant’s affidavit, a 

district court may find that the defendant’s unrebutted denials [are] sufficient to negate the 

plaintiff’s jurisdictional allegations.”).

Plaintiff also relies heavily on Alaska X’s indirect contacts with the state of Florida through 

its relationship with NCL and other cruise operators. See [ECF No. 26 at 5–7 ¶¶ 11–17]. However, 

district courts in this Circuit have repeatedly found similar indirect contacts to be insufficient to 

confer general personal jurisdiction over an excursion company. See, e.g., Synder, 2021 WL 

1920297, at *5; Moreno v. Carnival Corp., 488 F. Supp. 3d 1233, 1239 (S.D. Fla. 2020); Zhang, 

2019 WL 8895223, at *9 (finding that plaintiff’s “allegations do not come anywhere close to being 

the type of ‘exceptional case’ where a foreign corporation would be deemed to have met the 

stringent ‘at home’ test for personal jurisdiction” (citation omitted)); Aronson, 30 F. Supp. 3d at 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 15 of 19
16

1389–90 (finding excursion company’s indirect contacts to Florida through cruise operator 

insufficient to establish general personal jurisdiction). Collectively considering Alaska X’s direct 

and indirect contacts with Florida, Alaska X’s activities do not rise to the level of “substantial and 

not isolated activities” that would confer general personal jurisdiction over it within the meaning 

of Florida’s long-arm statute. See Aronson, 30 F. Supp. 3d at 1390. Therefore, the Court cannot 

exercise general personal jurisdiction over Alaska X.

II. Federal Rule of Civil Procedure 4(k)(2)

Alaska X also argues that it cannot be subjected to the Court’s jurisdiction pursuant to 

Federal Rule of Civil Procedure 4(k)(2)—the so-called “national long-arm statute.” [ECF No. 43 

at 19]. Although Plaintiff alleges in her First Amended Complaint that Alaska X is subject to the 

Court’s jurisdiction pursuant to Rule 4(k)(2), see [ECF No. 26 at 5 ¶ 9], she fails to respond to 

Alaska X’s arguments in its Motion. “When a party fails to respond to an argument or address a 

claim in a responsive brief, such argument or claim can be deemed abandoned.” GolTV, Inc. v. 

Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 1311 n.7 (S.D. Fla. Sept. 19, 2017) (concluding 

that plaintiff “conceded the point or else failed to carry [her] burden of substantiating the initial 

jurisdictional allegations” when failing to respond to arguments). The Court briefly notes that 

Plaintiff’s claim of personal jurisdiction over Alaska X pursuant to Rule 4(k)(2) would fail.

Rule 4(k)(2) provides that “serving a summons or filing a waiver of service establishes 

personal jurisdiction over a defendant” for a claim that arises under federal law if: (1) “the 

defendant is not subject to jurisdiction in any state’s courts of general jurisdiction;” and (2) 

“exercising jurisdiction is consistent with the United States Constitution and laws.” Fed. R. Civ. 

P. 4(k)(2). The Eleventh Circuit notes that:

Where . . . a defendant is not subject to the jurisdiction of the courts of general 

jurisdiction of any one state, Rule 4(k)(2) permits a court to aggregate a foreign 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 16 of 19
17

defendant’s nationwide contacts to allow for service of process provided that two 

conditions are met: (1) plaintiff’s claims must “arise under federal law;” and, (2) 

the exercise of jurisdiction must be “consistent with the Constitution and laws of 

the United States.”

Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000) (quoting Fed. R. Civ. P. 

4(k)(2)). However, “[i]n the wake of . . . Daimler, it appears unlikely that general jurisdiction over 

a foreign defendant could ever be available under [Rule] 4(k)(2).” Thompson v. Carnival Corp., 

174 F. Supp. 3d 1327, 1338 n.9 (S.D. Fla. 2016) (discussing Daimler, 571 U.S. at 138–42). 

As a threshold matter, Rule 4(k)(2) “is neither applicable nor relevant until a court finds 

that a defendant is not subject to personal jurisdiction in the courts of any state.” Storm, 2020 WL 

7415835, at *11. There is no indication that such a determination has been—or could be—made 

as to Alaska X. Nonetheless, assuming arguendo that Plaintiff’s claims against Alaska X arise 

under federal maritime law—a determination the Court has not yet made—“and looking, as the 

Court must, at the United States as a whole as the applicable forum for the minimum contacts 

analysis,” the Court finds that exercising jurisdiction over Alaska X would still offend due process. 

McCullough, 268 F. Supp. 3d at 1351 (quoting Oldfield, 558 F. Supp. 3d at 1220). Plaintiff asserts 

that Alaska X’s minimum contacts that establish personal jurisdiction pursuant to Rule 4(k)(2) 

include “marketing, promoting, and selling tickets for its excursions in the United States directly 

and/or through cruise lines as their agents located all over the United States.” [ECF No. 26 at 

5 ¶ 9]. The Eleventh Circuit has already determined that selling excursion tickets in the United 

States is the type of activity that is “‘far from atypical for foreign corporations’ and insufficient to 

warrant exercising general jurisdiction under Rule 4(k)(2).” Storm, 2020 WL 7415835, at *12 

(quoting Schulman v. Inst. for Shipboard Educ., 624 F. App’x 1002, 1006 (11th Cir. 2015) (per 

curiam)). Moreover, Alaska X’s Agreement with NCL is simply insufficient to establish minimum 

contacts with the state of Florida and “does not transform this case into one of the ‘exceptional’ 

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 17 of 19
18

cases in which a foreign company could be considered ‘essentially at home’ in the United States.” 

McCullough, 268 F. Supp. 3d at 1352 (quoting Daimler, 571 U.S. at 139 n.19). Therefore, the 

Court cannot confer general personal jurisdiction over Alaska X pursuant to Federal Rule of Civil 

Procedure 4(k)(2).

III. Due Process and Minimum Contacts

Because there is no basis for exercising personal jurisdiction over Alaska X here, “the 

Court need not address the second inquiry: whether the exercise of jurisdiction comports with due 

process.” Moreno, 488 F. Supp. 3d at 1239 (citing Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 

1214 (11th Cir. 1999) (per curiam)). This is because “the Due Process Clause ‘imposes a more 

restrictive requirement than does Florida’s Long-Arm Statute.’” Carmouche, 36 F. Supp. 3d at 

1344 (quoting Melgarejo v. Pycsa Panama, S.A., 537 F. App’x 852, 859 (11th Cir. 2013) (per 

curiam)). Therefore, “finding a defendant is not subject to jurisdiction under Florida law means 

that jurisdiction is also inappropriate under the Due Process Clause.” Serra-Cruz, 400 F. Supp. 3d 

at 1363 (citation omitted).

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant Alaska X’s Motion to Dismiss the Plaintiff’s Amended Complaint for 

Lack of Personal Jurisdiction, [ECF No. 43], is GRANTED.

2. Plaintiff Esterina Giuliani’s claims against Defendant Alaska X in her First 

Amended Complaint, [ECF No. 26], are DISMISSED without prejudice for lack 

of jurisdiction.

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 18 of 19
19

3. Defendant Alaska X is DISMISSED as a party to this action.

DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of September, 2021.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

Case 1:20-cv-22006-DPG Document 105 Entered on FLSD Docket 09/08/2021 Page 19 of 19