Law360 (June 30, 2020, 4:41 PM EDT) -- Royal Caribbean Cruises Ltd. and a nursing conference organizer have urged a Florida federal court to toss a proposed class action lodged against them after the COVID-19 pandemic forced cancellation of a nurses' cruise, claiming that they have offered would-be passengers a refund.
NurseCon at Sea LLC and Royal Caribbean on Monday filed separate motions to dismiss lead plaintiffs Jessica Mitchell and Kenneth Combs Jr.'s suit claiming that the companies have retained unearned fees for the canceled cruise and have implemented a policy that refuses to grant refunds to participants. Both companies say that the dispute should be decided by binding arbitration and that Mitchell had already accepted a refund while Combs refused his refund so he could pursue a class action.
"Plaintiffs waived their right to bring any class action claims in their ticket contract," Royal Caribbean argued. "It is well established in this district that where, as here, cruise line passengers receive a cruise ticket contract containing a class action waiver provision, such provision is not only binding, but may be raised at the motion to dismiss stage."
The cruise line also said U.S. District Judge Ursula Ungaro has already "taken a preliminary peek" at its arguments on why the court lacks subject matter jurisdiction and found in favor of Royal Caribbean in a Friday order that stayed discovery in the suit.
"All discovery in this matter, including the exchange of initial disclosures, is stayed pending the court's resolution of RCCL's forthcoming motion to dismiss," Judge Ungaro wrote.
NurseCon at Sea said in its motion that Mitchell and Combs in their April 16 amended complaint made "vague and generalized accusations of a failure to refund monies" even though they had previously agreed to resolve any claims through arbitration and have been offered refunds.
"Plaintiffs, both of whom were subsequently offered refunds they had requested, either accepted the refund outright (Plaintiff Mitchell) or requested a refund and then refused it (Combs), choosing instead to maintain a class action lawsuit," NurseCon said.
Mitchell initially sued NurseCon and Royal Caribbean on April 8, claiming that the nurses who paid to go on the canceled cruise could not get refunds. The cruise line argued in its motion to dismiss that Mitchell received a full refund for the cruise on April 15, a day before she joined Combs in filing the amended complaint.
The initial complaint says that Mitchell had paid for the event organized by social media celebrity Blake Lynch — a registered nurse who goes by the name of "Nurse Blake" and has become known for leading entertaining conferences focused on the nursing profession — and that NurseCon and Royal Caribbean implemented a policy refusing to grant refunds to participants.
Instead, the scheduled nursing conference known as NurseCon at Sea 2020 offered a credit that must be used for a future event to be held sometime between 2021 and 2023, according to the amended complaint.
Sanford, Florida-based NurseCon at Sea LLC's refusal to give refunds amounts to the theft of up to $2,578 from each of the 1,500 nurses who paid to go on the cruise, the April 8 complaint said. The April 16 amended complaint does not cite the $2,578 figure and makes no mention of theft, saying only that the plaintiffs paid down payments in February 2019 and began making monthly payments to the defendants of $119 since June 2019.
Mitchell, a nurse from San Antonio, claims that she had already made payments toward the five-day, four-night "festival-like" convention cruise aboard the Royal Caribbean vessel Independence of the Seas, scheduled for April 27 through May 1, the April 8 and 16 complaints said.
But President Donald Trump proclaimed a national emergency on March 13 due to the COVID-19 crisis, and the Centers for Disease Control and Prevention a few days later began urging the nation to practice social distancing and avoid gatherings of more than 10 people, according to the complaints.
Meanwhile, NurseCon canceled the 2020 conference with no official mention of the cancellation and instead formally announced plans for a 2021 conference, the complaints said.
The proposed class is composed of all people who paid for NurseCon at Sea 2020 but whose money was withheld after the event got canceled.
Counsel for Mitchell and Combs did not immediately respond Tuesday to a request for comment.
Counsel for NurseCon and Royal Caribbean did not immediately respond to a request for comment.
Mitchell is represented by William "Billy" Peerce Howard and Amanda J. Allen of The Consumer Protection Firm PLLC, and John A. Yanchunis Sr. and Patrick A. Barthle II of Morgan & Morgan Complex Litigation Group.
NurseCon at Sea is represented by Ephraim Hess of Hess Law Firm and John C. Davis of the Law Office of John C. Davis.
Royal Caribbean International is represented by David M. Levine, Fausto Sanchez and Chad Purdie of Sanchez Fischer Levine LLP.
The case is Mitchell et al. v. NurseCon at Sea LLC and Royal Caribbean International, case number 1:20-cv-21503, in the U.S. District Court for the Southern District of Florida.
--Editing by Peter Rozovsky.
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