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Carol A. Wolf and Edward L. Wolf v. Tico Travel

November 28, 2011


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


This matter is before the Court on a motion for summary judgment filed by Defendant Piscatory, Inc. d/b/a Bob Marriott's Flyfishing Store ("Bob Marriott's), and a motion for judgment on the pleadings filed by Defendant Tico Travel. Oral argument on the motions was heard November 15, 2011, and the record of that proceeding is incorporated here. For the reasons expressed on the record that day, and those set forth below, both motions will be granted.

Factual Background

On June 2, 2007, New Jersey citizens Brian Wolf and Kevin Holmes were among eleven members of the Cutty Sharks Fishing Club who traveled to Costa Rica on a fishing expedition. The group booked their trip through Florida retail travel agent Tico Travel, which made international air travel arrangements and used California booking agent Bob Marriott's to arrange for domestic air, travel, lodging, and fishing. Bob Marriott's booked the fishermen in the Casa Mar Lodge Del Caribe in Costa Rica. Travel packages to Casa Mar Lodge were all-inclusive and consisted of boat transfers from the airport, food, lodging, guided fishing, with boats and captains provided by Casa Mar Lodge. (Bounous Dec. ¶ 7.)

On June 7, 2007, Wolf and Holmes, first cousins, went out on the boat Don Coto operated by fishing guide and boat captain Pedro Antonio Cajina. They apparently were unaware that the local Coast Guard had issued a warning to the effect that fishing guides should not take patrons out that day due to the turbulent and choppy condition of the water. At some point, the Don Coto capsized. While Holmes was able to swim to shore, Wolf did not survive. His body was found three days later, and his cause of death was determined to be asphyxia by submergence.

On June 4, 2010, Wolf's parents and Holmes filed suit in this Court. In Count I, they allege negligence by Tico Travel and Bob Marriott's. Count II asserts a negligence claim against Casa Mar. In Count III, Wolf's parents assert a wrongful death claim against all Defendants, and in Count IV, they claim rights of survival. In Count V, Holmes states a claim for negligent infliction of emotional distress. Plaintiffs contend they are entitled to punitive damages in Count VI.


Jurisdiction over this civil action originally was premised upon 28 U.S.C. § 1333(1), "since plaintiffs' claims arise from an admiralty or maritime tort." (Compl. ¶ 12.)

Standard on Motion for Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) provides that a party may move for judgment on the pleadings. The movant under Rule 12(c) must show clearly that no material issue of fact exists and that it is entitled to judgment as a matter of law. Rosenau v. Uniford Corp., 539 F.3d 218, 221 (3d Cir. 2008) (citing Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 29091 (3d Cir. 1988)). A motion under Rule 12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). Turbe v. Government of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2). While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986)); accord Fed. R. Civ. P. 56(a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c) (1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256--57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. ...

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