Case 1:16-cv-21319-MGC Document 1 Entered on FLSD Docket 04/12/2016 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. AMPARO SANCHEZ and FRANCISCO MARTY. Plaintiffs. CLASS ACTION v. JURY DEMAND CARNIVAL CORPORATION; and FATHOM TRAVEL LTD. CORPORATION. Defendants. CLASS ACTION COMPLAINT Plaintiffs, Amparo Sanchez and Francisco Marty ("Plaintiffs"), individually and on behalf of all others similarly situated, file this Class Action Complaint against the Defendants, Carnival Corporation and Fathom Travel Ltd., Corporation for violation of Title II of the Civil Rights Act of 1964. INTRODUCTION 1. Defendants, Carnival Corporation ("Carnival") and Fathom Travel Ltd., Corporation, ("Fathom") (hereinafter collectively referred to as "Defendants") are refusing to allow Cuban-born persons to board its Fathom cruise line to Cuba, the first American cruise line to cruise to Cuba in over 50 years. 2. Cuban law currently prohibits Cuban Nationals from traveling to or from Cuba by ship, including cruise lines and ferries. 3. Defendants have adopted Cuba's policy to disallow Cuban-born persons from traveling to Cuba by ship. 1
Transcript
Case 1:16-cv-21319-MGC Document 1 Entered on FLSD Docket 04/12/2016 Page 1 of 11
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA
Plaintiffs, Amparo Sanchez and Francisco Marty ("Plaintiffs"), individually and on
behalf of all others similarly situated, file this Class Action Complaint against the Defendants,
Carnival Corporation and Fathom Travel Ltd., Corporation for violation of Title II of the Civil
Rights Act of 1964.
INTRODUCTION
1. Defendants, Carnival Corporation ("Carnival") and Fathom Travel Ltd.,
Corporation, ("Fathom") (hereinafter collectively referred to as "Defendants") are refusing to
allow Cuban-born persons to board its Fathom cruise line to Cuba, the first American cruise line
to cruise to Cuba in over 50 years.
2. Cuban law currently prohibits Cuban Nationals from traveling to or from Cuba by
ship, including cruise lines and ferries.
3. Defendants have adopted Cuba's policy to disallow Cuban-born persons from
traveling to Cuba by ship.
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4. Defendants will start operating their first cruise from the port of Miami to Cuba
on May 1, 2016.
5. This case presents a model situation for class treatment. Defendants' conduct
including its refusal to allow any Cuban-born on the Fathom cruise line to Cuba is uniform
among all passengers. The application of Florida federal law to a shared course of conduct will
determine liability for members of the putative class as a whole, ensuring that the rights of
thousands of individuals are vindicated through the efficiency of a single trial.
PARTIES, JURISDICTION & VENUE
6. During the Class Period, Plaintiff Amparo Sanchez resided in, and continues to
reside in, the Southern District of Florida.
7. During the Class Period, Plaintiff Francisco Marty resided in, and continues to
reside in, the Southern District of Florida. Francisco Marty is a United States Army Veteran and
a frequent passenger on Carnival cruise lines. He is an actual VIP cruiser with Carnival.
8. This is an action for injunctive relief and this Court has federal question
jurisdiction as this case arises under federal law 42 U.S.C. 2000a.
9. Defendant Carnival Corporation is a Florida Corporation with its principal place
of business in the Southern District of Florida.
10. Defendant Fathom Travel Ltd., Corporation is a corporation incorporated in the
United Kingdom authorized to transact business in Florida. Fathom is a cruise line company
wholly owned by Carnival Corporation.
11. The Court has jurisdiction over Carnival because it is a Florida corporation with
its principal place of business in the Southern District of Florida. By conducting business in the
Southern District of Florida, Carnival has sufficient minimum contacts with the State of Florida,
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or otherwise intentionally availed itself of the Florida consumer market through the systematic
sale of its cruise line reservations to Florida citizens. This purposeful availment renders the
exercise of jurisdiction by this Court over Carnival permissible under traditional notions of fair
play and substantial justice.
12. This Court has jurisdiction over Fathom because it is a foreign corporation
authorized to do business in the State of Florida, and is regularly and systematically engaging in
business in the Southern District of Florida. By conducting business in the Southern District of
Florida, Fathom has sufficient minimum contacts with the State of Florida, or otherwise
intentionally availed itself of the Florida consumer market through the systematic sale of its
cruise line reservations to Florida citizens. This purposeful availment renders the exercise of
jurisdiction by this Court over Fathom permissible under traditional notions of fair play and
substantial justice.
13. Venue is proper in this forum pursuant to 28 U.S.C. §1391 because a substantial
part of the practices complained of herein occurred in the Southern District of Florida. Further, at
all times material to the allegations contained in this Complaint, Defendants personally and/or
through an agent:
a. Operated, conducted, engaged in, and carried on a business venture in the
Southern District of Florida or had an office or agency in the Southern District of
Florida; and/or
b. Engaged in substantial activity within this State and district.
14. All conditions precedent to this action have occurred, been performed, or have
been waived.
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FACTUAL ALLEGATIONS
15. Carnival is "The World's Most Popular Cruise Line" with 24 ships operating 3 to
16-day voyages around the world. Carnival carries nearly 11 million passengers ever year to
ports world-wide.
16. Fathom is the newest brand in the Carnival family and is a subsidiary of Carnival.
The Fathom cruise line is scheduled to depart on May 1, 2016 from the Miami port to Cuba.
17. In April 2016, Plaintiffs Amparo Sanchez and Francisco Marty each contacted
Fathom Travel separately to make a reservation on the Carnival cruise line, Fathom, to travel to
Cuba.
18. Due to Plaintiffs' heavy accents, the Fathom representatives asked Plaintiffs for
their country of national origin.
19. Plaintiffs proceeded to tell the Fathom representatives that they are of Cuban
national origin.
20. In response, the Fathom representatives explained to Plaintiffs that they could not
have a reservation on the Fathom cruise line because they were Cuban Nationals.
21. The Fathom representatives proceeded to explain to Plaintiffs that Carnival has
been "working on the issue for months" and did not want to lose the loyalty of their customers.
22. In Fathom's website, one of the frequently asked questions (FAQs) is: "Are
Cuban-born U.S. Citizens and/or residents able to participate in a Fathom Cruise with valid U.S.
and Cuban passports?" Fathom's response is:
Unfortunately, the Cuban government has a longstanding regulation that
prohibit Cuban-born individuals traveling from anywhere in the world to andfrom Cuba by ship. This regulation applies to all cruise lines, ferries and any formof shipping planning to travel to and from Cuba.
Of course, it is Carnival's policy to obey the regulations and laws of the
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countries we sail to around the world. However, we have requested a
reconsideration of this particular regulation especially as it relates to cruisetravelers.
We understand and empathize with the concerns being voiced and willcontinue to work the issue with Cuban officials. It is our hope and intention thatwe will be able to travel with everyone.
About Fathom in Cuba, FATHOM TRAVEL, https://www.ffithom.org/cuba-faq/ (last visited Apr.12, 2016).
23. Carnival and Fathom have adopted a policy to support Cuba's boycott of Cuban-
born individuals from traveling to and from Cuba by ship.
24. As a result of Defendants' discriminatory practices, Plaintiffs and the Class have
been denied the full enjoyment of Defendants' place of public accommodation while being
discriminated on the ground of national origin.
CLASS ACTION ALLEGATIONS
A. Class Definition
25. Plaintiffs bring this action against Defendants pursuant to Rule 23 of the Federal
Rules of Civil Procedure on behalf of all other persons similar situated. Plaintiffs seek
certification of the Nationwide Class, defined as follows:
All individuals in the United States born in Cuba that were denied a reservation
through Carnival or Fathom cruise lines for travel by ship to Cuba after June 1,2015 up to and including the present (the "Class").
26. Plaintiffs reserve the right to modify or amend the definition of the proposed class
before the Court determines whether certification is appropriate.
27. Defendants subjected Plaintiffs and the respective Class members to the same
discrimination and harmed them in the same manner.
B. Numerosity
28. The proposed Class is so numerous that joinder of all members would be
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impracticable. Defendants sell (or refuse to sell) thousands of cruise line reservations nationwide.
The individual Class members are ascertainable, as the names and addresses of all class members
can be identified in the business records maintained by Defendants. The precise number of Class
members for the Class is at least in the thousands and can only be obtained through discovery,
but the numbers are clearly more than can be consolidated in one complaint such that it would be
impractical for each member to bring suit individually. Plaintiffs do not anticipate any
difficulties in the management of the action as a class action.
C. Commonality
29. There are questions of law and fact that are common to Plaintiffs and Class
members' claims. These common questions of law and fact predominate over any questions
affecting only individual members of the Class. Such questions include, but are not limited to,
the following:
a. Whether Defendants' cruise line is a "public accommodation" pursuant to 42
U.S.C. 2000a;
b. Whether Defendants have a policy of refusing Cuban-born individuals
reservations on the Fathom cruise line on the ground of national origin;
c. Whether Defendants' policy violates Title II of the Civil Rights Act of 1964, 42
U.S.C. 2000a; and
d. Whether injunctive relief is appropriate to prevent Defendants from continuing to
engage in their unlawful and discriminatory conduct.
D. Typicality
30. Plaintiffs are members of the Class they seek to represent. Plaintiffs' claims are
typical of the Class's claims because of the similarity, uniformity, and common purpose of the
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Defendants' unlawful and discriminatory conduct. Class members were denied access to board
the Fathom cruise line and sustained the same injury arising out of Defendants' common course
of conduct. Each Class member has sustained, and will continue to sustain, damages in the same
manner as Plaintiffs as a result of Defendants' wrongful conduct.
E. Adequacy of Representation
31. Plaintiffs are adequate representatives of the Class they seek to represent and will
fairly and adequately protect the interests of the Class. Plaintiffs have retained competent
counsel, experienced in litigation of this nature, to represent them. There is no hostility between
Plaintiffs and the unnamed Class members. Plaintiffs anticipate no difficulty in the management
of this litigation as a class action.
32. To prosecute this case, Plaintiffs have chosen the undersigned law firms, which
are very experienced in class action litigation and have the financial and legal resources to meet
the substantial costs and legal issues associated with this type of litigation.
F. Requirements of Fed. R. Civ. P. 23(b)(3)
33. The questions of law or fact common to Plaintiffs and each Class member's
claims predominate over any questions of law or fact affecting only individual members of the
Class.
34. Common issues predominate when, as here, liability can be determined on a class-
wide basis.
35. When determining whether common questions predominate, courts focus on the
liability issue, and if the liability issue is common to the class as is the case at bar, common
questions will be held to predominate over individual questions.
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G. Superiority
36. A class action is superior to individual actions in part because of the non-
exhaustive factors listed below:
a. Joinder of all class members would create extreme hardship andinconvenience for the affected customers as they reside all across thestates;
b. Individual claims by class members are impractical because the costs to
pursue individual claims exceed the value of what any one class memberhas at stake. As a result, individual class members have no interest in
prosecuting and controlling separate actions;
c. There are no known individual class members who are interested in
individually controlling the prosecution of separate actions;
d. The interests of justice will be well served by resolving the common
disputes of potential class members in one forum;
e. Individual suits would not be cost effective or economically maintainableas individual actions; and
f. The action is manageable as a class action.
H. Requirements of Fed. R. Civ. P. 23(b)(2)
37. Defendants have acted or refused to act in a manner generally applicable to the
class, thereby making appropriate final injunctive relief with respect to the Class as a whole.
38. Defendants' wrongful conduct and discriminatory practice, if not enjoined, will
subject Class members and other members of the public to substantial continuing harm and will
cause irreparable injuries to class members and members of the public who are damaged by
Defendants' conduct.
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COUNT I
VIOLATION OF 42 U.S.C. 2000A(TITLE II OF THE CIVIL RIGHTS ACT OF 1964)
(On behalf of the Nationwide Class)
Plaintiffs re-allege and incorporate paragraphs 1 38 above as if fully set forth herein and
further allege as follows:
39. This is a claim for an injunction for violations of Title II of the Civil Rights Act of
1964, 42 U.S.C. 2000a 2000a-6(b).
40. 42 U.S.C. 2000a, et seq., prohibits discrimination and segregation in places of
accommodation. Section 2000a(a) states: "All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any
place of public accommodation, as defined in this section, without discrimination or segregation
on the ground of race, color, religion, or national origin."
41. A place of accommodation, as defined by 42 USC 2000a, includes, among other
things, "any inn, hotel, motel, or other establishment which provides lodging to transient guests,
other than establishment located with a building which contains not more than five rooms for
rent or hire and which is actually occupied by the proprietor of such establishment as his
residence." 42 USC 2000a(b)(1).
42. Fathom cruise lines are places of public accommodation as defined under Section
2000a. Fathom is an establishment which provides lodging to transient guests.
43. Each Plaintiff and Class member is a member of a protected class.
44. Each Plaintiff and Class member attempted to contract for services with
Defendants and to afford themselves the full benefits and enjoyment of a public accommodation
Fathom cruise lines.
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45. Each Plaintiff and Class member was denied the right to contract for those
services with Defendants and, thus, were denied those benefits and enjoyments.
46. Plaintiffs and Class members were denied access to a place of accommodation
Defendants' cruise ships, on the basis of discriminatory acts by Defendants.
47. Similarly situated persons who are not members of the protected class received
full benefits or enjoyment, or were treated better. Namely, non-Cuban Nationals are freely
allowed to make reservations with Fathom cruise lines to travel to and from Cuba.
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated,
respectfully demand a judgment enjoining Defendants' conduct, awarding costs for this
proceeding and attorneys' fees pursuant to 42 USC §2000a-3(b), and such other relief as this
Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiffs and the Class request a jury trial for all issues which a trial by jury is permitted
by law.
Dated: April 12, 2016.
Respet y submitted,
s A. Tu er firetti, Esq./F121lida Bar o. 5723
c,t(rcbkttlaw.c i.
Javier A. Lopez, Esq.Florida Bar No. 16727
jal(a)„kttlaw.comStephanie Moncada Gomez, Esq.Florida Bar No. 112095
sgomezkattlaw.comKOZYAK TROPIN & THROCKMORTON, LLP2525 Ponce de Leon Blvd., 9th FloorCoral Gables, Florida 33134
Telephone: (305) 372-1800
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Facsimile: (305) 372-3508
-and-
/s/ Robert W. RodriguezRobert W. Rodriguez, Esq.Florida Bar No. 856975
Case 1:16-cv-21319-MGC Document 1-1 Entered on FLSD Docket 04/12/2016 Page 1 of 1JS 44 (Rev. 11/15) Revised03/16 CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purposeof initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re-filed Cases Below.
I. (a) PLAINTIFFS DEFENDANTSAmparo Sanchez; Francisco Marty Carnival Corporation; Fathom Travel Ltd.
Corporation
(b) County of Residence of First Listed Plaintiff Mi Oa d e County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(C) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (IfKnown
Kozyak Tropin & Throckmorton, 2525 Ponce de Leon Blvd., 9th Floor,Miami, Florida, 33134 (305) 372-1800
(d) Check County Where Action Arose: WI MIAMI- DADE 0 MONROE 0 BROWARD 0 PALM BEACH El MARTIN 0 ST. LUCIE 0 INDIAN RIVER 0 OKEECHOBEE 0 HIGHLANDS
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiffi(For Diversity Cases Only) and One Boxfor Defendant)
O 1 U.S. Government le] 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Nor a Party) Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 04of Business In This State
O 2 U.S. Government 04 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State
Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6
Foreign CountryIV N ATI IR F'. UR gi TIT to/,,,, v,,,. rms n,,,, rmim
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act
0 120 Marine 0 310 Airplane 0 365 Personal Injury of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USC
0 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 3729 (a))0 140 Negotiable Instrument Liability 0 367 Health Care/ 0 400 State Reapportionment0 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 0 410 Antitrust
& Enforcement ofJudgment Slander Personal Injury U 820 Copyrights 0 430 Banks and Banking0 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 450 Commerce
0 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark 0 460 DeportationStudent Loans 0 340 Marine Injury Product 0 470 Racketeer Influenced and
of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) 0 490 Cable/Sat TV
0 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Mgmt. Relations 0 863 DIWC/D1WW (405(g)) 0 850 Securities/Commodities/0 190 Other Contract Product Liability 0 380 Other Personal 0 740 Railway Labor Act 0 864 SSID Title XVI Exchange0 195 Contract Product Liability 0 360 Other Personal Property Damage 0 751 Family and Medical 0 865 RSI (405(g)) 0 890 Other Statutory Actions
r-i 500 245 Tort Product Liability 0 445 Amer. w/Disabilities 0 530 General IMMIGRATION 1.-'9Constitutionality of StateStatutes
O 290 All Other Real Property Employment 0 535 Death Penalty 0 462 Naturalization Application0 446 Amer. w/Disabilities 0 540 Mandamus & Other 0 465 Other Immigration
Other 0 550 Civil Rights Actions0 448 Education 0 555 Prison Condition
560 Civil Detainee0 Conditions of
ConfinementrIppcul Lt.,
V. ORIGIN (Place an "X" in One Box Only) District Remanded fromef I Original 0 2 Removed from 0 3 Re-filed (See 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict Judge from 08 Appellate Court
Proceeding VI below) Reopened another district Litigation 1:1 7 MagistrateState Court (sPeci fy) Judgment
VI. RELATED/ a) Re-filed Case DYES KNO b) Related Cases DYES KNORE-FILED CASE(S) (See instructions):
JUDGE DOCKET NUMBER
Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement ofCause (Do not citejurisdietiond statutes unless diversity):VII. CAUSE OF ACTION 42 U.S.C. 2000a
LENGTH OF TRIAL via34 days estimated (for both sides to try entire case)VIII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only ifdemanded in complaint:
COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: 0 Yes: 0 No
ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MyANIDWLEDGEDATE SIGNATLIKE OF/ATTORNEY ouncoRa...—
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