Jacqueline Veverka v. Royal Caribbean Cruises

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 15-1965
_______________

JACQUELINE VEVERKA,
Appellant

v.

ROYAL CARIBBEAN CRUISES LTD
_________________________________________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:12-cv-03070)
District Judge: Esther Salas
_________________________________________

Submitted under Third Circuit LAR 34.1(a)
on April 5, 2016

Before: AMBRO, KRAUSE, Circuit Judges, and THOMPSON,* District Judge

(Opinion filed: May 13, 2016)

__________________

OPINION**
__________________

*
The Honorable Anne E. Thompson, Senior District Judge for the United States
District Court for the District of New Jersey, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

Jacqueline Veverka appeals a District Court order granting summary judgment in

favor of Royal Caribbean Cruises on all five of her claims for an injury she sustained

while onboard one of Royal Caribbean’s cruise ships. For the reasons set forth below, we

will affirm.

I. Background

Because we write primarily for the parties, we provide background only as

relevant to the issues on appeal. On May 22, 2010, Veverka boarded a Royal Caribbean

cruise ship for a trip to Bermuda. The following day, while en route to Bermuda, she

slipped on a puddle of water on the ship’s deck and broke her hip. She was admitted to

the ship’s infirmary until the ship docked the following morning, after which she was

transferred to King Edward Hospital in Bermuda. That same day, at her own request and

against the advice of her surgeon, she was flown to a hospital in New Jersey for hip

replacement surgery.

Veverka’s cruise was booked by her oldest daughter.1 A Royal Caribbean

employee named David Banciella testified in an affidavit that Royal Caribbean’s tickets –

Veverka’s included – include a terms and conditions section, which limits the time for

filing a personal injury lawsuit to one year:

TIME LIMITS FOR PERSONAL INJURY/ILLNESS/DEATH CLAIMS:
NO SUIT SHALL BE MAINTAINABLE AGAINST CARRIER, THE

1
Veverka testified that her daughter planned the cruise and purchased her ticket.
Veverka then reimbursed her.
2
 VESSEL OR THE TRANSPORT FOR PERSONAL INJURY, ILLNESS
OR DEATH OF ANY PASSENGER UNLESS WRITTEN NOTICE OF
THE CLAIM, WITH FULL PARTICULARS, SHALL BE DELIVERED
TO CARRIER AT ITS PRINCIPAL OFFICE WITHIN SIX (6) MONTHS
FROM THE DATE OF THE INJURY, ILLNESS OR DEATH AND SUIT
IS COMMENCED (FILED) WITHIN ONE (1) YEAR FROM THE DATE
OF SUCH INJURY, ILLNESS OR DEATH AND PROCESS SERVED
WITHIN 120 DAYS AFTER FILING, NOTWITHSTANDING ANY
PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE
CONTRARY.

App. 148. Biancella also testified that the first page of Royal Caribbean’s tickets notify

passengers to “READ ALL TERMS OF THIS CONTRACT, PAYING PARTICULAR

ATTENTION TO SECTION 3 AND SECTIONS 9 THROUGH 11, WHICH LIMIT

OUR LIABILITY AND YOUR RIGHT TO SUE.” App. 148. Biancella’s affidavit

stated, “[p]rior to embarkation, each passenger is required to sign the portion of her

Ticket Acknowledgment Card in the space provided. The passenger hands this document

to the embarkation staff at the pier prior to boarding the vessel.” App. 149. Biancella

testified that Royal Caribbean sent Veverka her ticket, including the terms and conditions

section cited above, prior to her cruise. In her deposition, Veverka testified that she does

not recall if she ever received a cruise ticket and that her “oldest daughter planned

everything.” App. 201, 206.

On May 24, 2012, Veverka filed a civil action against Royal Caribbean in the

United States District Court for the District of New Jersey, a full two years after her

injury. She brought claims for negligence, breach of contract, tortious interference with

contractual relations, breach of good faith and fair dealing, and violation of the New

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Jersey Consumer Fraud Act (NJCFA). After discovery, Royal Caribbean filed a motion

for summary judgment, which the District Court granted. The Court entered judgment on

Veverka’s negligence and breach of contract claims for untimeliness under the cruise

ticket’s statute of limitations clause. It entered judgment on the NJCFA and breach-of-

good-faith claims for failure to demonstrate unlawful conduct and bad faith, respectively.

Finally, it granted judgment on the tortious interference claim for failure to demonstrate

that Royal Caribbean had knowledge of Veverka’s insurance agreement with Medicare.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction to hear this case under 28 U.S.C. § 1332, and

we have jurisdiction under 28 U.S.C. § 1291.

We exercise de novo review over the District Court’s grant of summary judgment,

employing the same standard as the District Court. DeHart v. Horn, 390 F.3d 262, 267

(3d Cir. 2004). “Summary judgment is appropriate ‘if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “We

review a district court’s discovery order[] for abuse of discretion, and will not disturb

such an order absent a showing of actual and substantial prejudice.” Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir. 2010).

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 III. Discussion

Veverka claims five errors on appeal: (1) the Biancella affidavit should have been

excluded for failure to comply with the self-executing disclosure requirements of Federal

Rule 26; (2) Royal Caribbean’s statute of limitations defense should have been denied as

waived; (3) the record contains disputes of material fact, which preclude summary

judgment; (4) the District Court failed to give Veverka notice before sua sponte

dismissing her breach of contract claim; and (5) the District Court misconstrued her

NJCFA claim by failing to consider whether she was entitled to relief for being “forcibly

disembarked” from the cruise ship. None of these arguments is meritorious.

Accordingly, we will affirm.

A. Affidavit of David Biancella

Veverka first argues that the affidavit of David Biancella should have been

excluded at summary judgment because Royal Caribbean failed to disclose Biancella in

its self-executing disclosures. Federal Rule 26 requires litigants to disclose the names of

individuals “likely to have discoverable information . . . that the disclosing party may use

to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26 disclosures are

self-executing, meaning they must be exchanged as a matter of course “without awaiting

a discovery request.” Fed. R. Civ. P. 26(a)(1)(A). Additionally, Rule 26 requires

supplementation of disclosures unless the information has “otherwise been made known

to the other parties during the discovery process or in writing.” Fed. R. Civ. P.

5
26(e)(1)(A). A witness that was not disclosed under Rule 26 may be excluded “unless

the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

The District Court held that Biancella “was clearly ‘made known’ to [Veverka]

within the meaning of Rule 26” because Royal Caribbean had filed a nearly identical

affidavit by Biancella in support of its motion to transfer venue almost two years before

summary judgment. Veverka, 2015 WL 1270139, at *3 (quoting Fed. R. Civ. P. 26). We

perceive no abuse of discretion in this ruling and will affirm the District Court’s decision.

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir. 1995) (applying abuse-of-

discretion review to district court’s decision not to exclude testimony for failure to

comply with Rule 26’s self-executing disclosure requirement).

B. Statute of Limitations Defense

Veverka next argues that Royal Caribbean waived its limitations defense by

failing to raise it in a Rule 12(b)(6) motion to dismiss and failing to plead it as a Rule 8(c)

affirmative defense. Royal Caribbean responds by pointing out that Veverka raised this

issue for the first time on appeal, so we should not consider it.

We have “consistently held that [we] will not consider issues that are raised for the

first time on appeal.” Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994). This rule

is discretionary and “may be relaxed whenever the public interest or justice so warrants.”

Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (deciding issue raised for

first time on appeal that “calls into doubt the constitutionality of [a state’s] regulatory

scheme”) (quoting Franki Found. Co. v. Alger-Rau & Assoc., Inc., 513 F.2d 581, 586 (3d

6
Cir. 1975)). A review of the District Court record demonstrates that Veverka never

raised the waiver issue she now presses on appeal. Furthermore, Veverka has not

identified any public interest or explained why justice would warrant relaxing the rule in

this case.2 Accordingly, Veverka waived her waiver argument by failing to raise it

below.

C. Factual Disputes in the Record

Veverka contends that there are several factual disputes in the record that preclude

summary judgment. As a preliminary matter, however, she objects to the statement of

undisputed facts that Royal Caribbean filed in support of its motion on the ground that

the statement did not comply with the District Court’s Local Rule 56.1.

2
It does not appear that Veverka’s waiver argument would succeed in any event.
She first argues that Royal Caribbean’s limitations defense was waived under Federal
Rule 12(h), which provides that a party waives a Rule 12 defense by “omitting it from a
motion in the circumstances described in Rule 12(g)(2).” Fed. R. Civ. P. 12(h). Rule
12(g)(2) states, “a party that makes a motion [to dismiss] under this rule must not make
another motion under this rule raising a defense or objection that was available to the
party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). By its own terms,
Rule 12’s waiver provision applies only to defenses raised under Rule 12. In contrast,
Royal Caribbean raised its limitations defense in a Rule 56 motion for summary
judgment. Therefore, Veverka’s argument is misplaced.

Alternatively, Veverka argues that Royal Caribbean waived its defense by failing
to plead it as an affirmative defense in its answer. Federal Rule 8(c) provides, “[i]n
responding to a pleading, a party must affirmatively state any avoidance or affirmative
defense, including . . . statute of limitations.” Fed. R. Civ. P. 8(c). A review of Royal
Caribbean’s answer reveals that its sixth affirmative defense “claim[ed] all rights,
immunities, exonerations and limitations of liability provided in the terms and conditions
of the cruise ticket.” App. 60. Accordingly, Royal Caribbean did plead the limitations
clause as an affirmative defense even if not with particularity.

7
 Local Rule 56.1 provides:

On motions for summary judgment, the movant shall furnish a statement
which sets forth material facts as to which there does not exist a genuine
issue, in separately numbered paragraphs citing to the affidavits and other
documents submitted in support of the motion. A motion for summary
judgment unaccompanied by a statement of material facts not in dispute
shall be dismissed.

D.N.J. Civ. R. 56.1(a).

Veverka’s compliance argument is puzzling because Royal Caribbean’s statement

sets forth the facts necessary to decide its summary judgment motion, complete with

numbered paragraphs and citations to the record. But even if Royal Caribbean did not

comply with Rule 56.1, the District Court’s decision did not constitute reversible error.

We have held that district courts have substantial discretion to depart from their local

rules “where (1) [they] ha[ve] a sound rationale for doing so, and (2) so doing does not

unfairly prejudice a party who has relied on the local rule to his detriment.” United

States v. Eleven Vehicles, 200 F.3d 203, 215 (3d Cir. 2000). The District Court explained

its rationale for excusing any technical error in Royal Caribbean’s statement of fact,

explaining that its statement sufficiently narrowed the record such that the “Court [was]

able to adjudicate the motion without the need for a factual scavenger hunt.” App. 9.

Moreover, Veverka has not pointed to any unfair prejudice she suffered from the District

Court’s decision. Accordingly, we perceive no abuse of discretion. 3

3
Veverka also argues that Royal Caribbean never responded to her supplemental
statement of fact and that, pursuant to Rule 56.1, her supplemental facts should have been
deemed admitted. Rule 56.1 provides, in relevant part, “[T]he [nonmoving party] may
8
 Veverka argues that the record contains two disputes of material fact: (1) whether

she received a ticket from Royal Caribbean, which is relevant to whether Veverka is

bound by the limitations clause of the ticket agreement, and (2) whether Royal Caribbean

had knowledge of her insurance agreement with Medicare, which is relevant to her

tortious interference claim. We will address both arguments.

We have previously held that a passenger is bound by a contractual limitations

clause in a cruise ticket if the clause language is reasonably communicated to the

passenger. Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir. 1987). A passenger

who has possession of a cruise ticket is charged with knowledge of the terms of the

ticket, even if she has not read them. Id. at 247.

Here, Mr. Biancella testified that Royal Caribbean sent Veverka a ticket, which

included the terms of the limitations clause. Veverka denies receiving a ticket and points

to her deposition testimony in support. But her testimony reveals that she never denied

receiving a ticket; rather, she testified that she did not remember receiving a ticket.

Moreover, the Biancella affidavit states that passengers must sign the acknowledgement

form portion of the cruise ticket before boarding, indicating that Veverka could not have

also furnish a supplemental statement of disputed material facts . . . if necessary to
substantiate the factual basis for opposition. The movant shall respond to any such
supplemental statement of disputed material facts as above, with its reply papers.” But
the District Court did “deem [Veverka’s supplemental facts] undisputed for purposes of
[the summary judgment] motion” in light of Royal Caribbean’s failure to respond.
Veverka v. Royal Caribbean Cruises, Ltd., No. 12-cv-3070, 2015 WL 1270139, *1 n.1
(Mar. 18, 2015). Accordingly, the District Court followed the express language of Rule
56.1.
9
boarded without acknowledging receipt of her ticket. Veverka testified that her daughter

handled all aspects of booking the cruise, but she admitted that she received some

paperwork regarding the cruise before boarding. Moreover, even if Veverka’s daughter

had possession of her ticket at all times, Veverka is still charged with constructive notice

of its terms. Marek, 817 F.2d at 247 (concluding that a “[friend’s] possession of [a

ticket] is sufficient to charge [litigant] with notice of its provisions”). Accordingly, there

is no dispute of material fact concerning the application of the limitations clause, and we

will affirm the District Court judgment that Veverka’s negligence and breach of contract

claims are untimely.

Veverka next argues that there is a dispute of fact as to her tortious interference

claim, specifically whether Royal Caribbean had knowledge of her contract with

Medicare. To prove tortious interference under New Jersey law,4 a litigant must

demonstrate: “(1) actual interference with a contract; (2) that the interference was

inflicted intentionally by a defendant who is not a party to the contract; (3) that the

interference was without justification; and (4) that the interference caused damage.”

Dello Russo v. Nagel, 817 A.2d 426, 434 (N.J. Super. Ct. App. Div. 2003); see also

Printing Mart-Morristown v. Sharp Elec. Corp., 563 A.2d 31, 37 (N.J. 1989) (discussing

elements of claim for tortious interference in context of prospective economic

relationship).

4
Neither party on appeal disputes the District Court’s reliance on the law of New
Jersey as the proper choice of law for this claim.
10
 Veverka’s complaint is vague in the details of her tortious interference claim. Her

summary judgment brief explains: “Plaintiff is required under the MMSEA Extension

Act of 2007 (Medicare, Medicaid, and SCHIP) to reimburse Medicare for the medical

expenses incurred. Defendant is tortuously [sic] interfering with Plaintiff’s contractual

relationship with Medicare by refusing to remit reimbursement of the medical treatment

provided and paid for by Medicare.” App. 179-180. The District Court granted summary

judgment in Royal Caribbean’s favor, finding that Veverka failed to point to any record

evidence supporting the allegation that Royal Caribbean knew about a contract between

Veverka and Medicare. 2015 WL 1270139, at *11.

Without proof of knowledge, there can be no intent to interfere with a contract. A

review of Veverka’s statement in opposition to summary judgment shows that she did not

identify any record evidence supporting Royal Caribbean’s knowledge of a contract.

Instead, she cited to paragraph 18 of her amended complaint, which states, “Defendant

failed to comply with an agreement for goods and services and failed to fulfill such

agreement causing the Plaintiff economic and other forms of damages. Further,

Defendant interfered with the Plaintiff’s third party contract for medical services and

care.” App. 185. But at summary judgment, Veverka must “cit[e] 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 nonmoving party cannot create

a genuine issue of fact by citing the pleadings. Orsatti v. N. J. State Police, 71 F.3d 480,

11
484 (3d Cir. 1995) (“[A] plaintiff cannot resist a properly supported motion for summary

judgment merely by restating the allegations of his complaint, but must point to concrete

evidence in the record that supports each and every essential element of his case.”).

Accordingly, we will affirm the District Court’s grant of summary judgment on

Veverka’s tortious interference claim.

D. Breach-of-Contract Claim

Veverka next argues that the District Court committed error by entering judgment

sua sponte on her breach-of-contract claim without giving her notice that her claim was

subject to dismissal. She further argues that she was prejudiced because breach of

contract “involves highly fact-specific inquiries, and there is no indication that the factual

record was fully developed.” Appellant’s Br. 25.

Contrary to Veverka’s assertion, the District Court’s decision was not sua sponte.

Royal Caribbean’s motion for summary judgment was unequivocal. It sought judgment

on all counts of the amended complaint and thoroughly briefed the statute of limitations

issue which formed the basis of the District Court’s judgment on that claim. Veverka’s

own briefing contradicts her position because it addressed Royal Caribbean’s statute of

limitations argument as well as the merits of her breach of contract claim. Accordingly,

the District Court’s entry of judgment was not sua sponte.

Veverka’s prejudice argument is equally meritless. The District Court record

shows that discovery was concluded by the time Royal Caribbean moved for summary

judgment. If Veverka believed that further discovery was necessary, she could have filed

12
an affidavit or declaration under Rule 56(d) requesting further discovery. Fed. R. Civ. P.

56(d) (allowing a court to defer consideration of a motion for summary judgment and

order discovery if nonmovant is unable to present facts in opposition to summary

judgment). Having failed to make such a request, Veverka cannot now claim prejudice

on appeal.

E. New Jersey Consumer Fraud Act Claim

The District Court construed Veverka’s NJCFA claim to base liability on Royal

Caribbean “failing to maintain a safe environment on the ship,” “fail[ing] to provide

reimbursement for cruise expenses,” and “by providing [poor] medical treatment to

[Veverka and] by failing to reimburse her for medical expenses.” 2015 WL 1270139, at

*8-9. Veverka now argues that the District Court erred because she seeks damages based

on Royal Caribbean’s conduct in “forcibly remov[ing her] (against her will) from the

[ship], not because she voluntarily left the vessel.” Appellant’s Br. 21.

Veverka’s position is not supported by the record. Veverka testified that she was

“taken off [the ship] and put in an ambulance” to King Edward Hospital in Bermuda.

App. 235. Upon receiving a diagnosis at King Edward, Veverka requested a Medivac to

New Jersey, in part because Medicare did not cover treatment in Bermuda and in part

because she “[did not] want to be operated on so far from home.” App. 237. Veverka

has pointed to no evidence supporting her assertion that Royal Caribbean forcibly

removed her from the ship. Rather, her transfer to King Edward Hospital and her

subsequent decision to fly back to New Jersey to undergo surgery were simply

13
consequences of her unfortunate injuries. Accordingly, we will affirm the District

Court’s entry of judgment on Veverka’s NJCFA claim.

IV. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.

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