The opinion of the court was delivered by: Andrew J. Guilford United States District Judge
ORDER GRANTING MOTION RE ARBITRATION AND TO DISMISS
This case involves a dispute about the lack of handicap accommodations on a cruise to Mexico. Defendant Norwegian Cruise Lines, Ltd. ("Defendant") filed a motion to dismiss ("Motion") for lack of subject matter jurisdiction and failure to state a claim. The Court treats the Motion as one to determine whether arbitration is required. After considering all papers and arguments submitted, the Court GRANTS the Motion.
Plaintiff submitted evidentiary objections to the Declarations of Trinette Sachrison and Jane Kilgour. The Court's analysis does not rely on the Declaration of Trinette Sachrison, so the Court will not rule on that objection.
Plaintiff objects to Jane Kilgour's declaration on many grounds. As a general matter, Defendant argues that the allegations in the Complaint are presumed to be true and thus Kilgour's declaration cannot create a disputed issue of fact. But here, the Court treats the Motion as one to determine whether arbitration is required. "When considering a motion to compel arbitration, a court applies a standard similar to the summary judgment standard of Fed. R. Civ. P. 56." Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796, 804 (N.D. Cal. 2004). Thus, for these motions, the court may consider evidence outside of the pleadings. This objection is OVERRULED.
Plaintiff's first specific objection is to paragraph 5 on grounds that Kilgour's statements about Defendant's cruise booking procedures are "speculative" and not about the instant case. Kilgour lays the proper foundation for her testimony on Defendant's procedures because she is "intimately familiar with the . . . procedures for ticketing passengers on an NCL cruise and the methods by which notice is provided to passengers regarding the terms and conditions of the passenger contract . . . ." (Kilgour Decl. ¶ 2.) Defendant's procedures for contracting with customers is relevant evidence. This objection is OVERRULED.
Plaintiff's second objection is to paragraph 9 on grounds that it misrepresents Exhibit 2 by not mentioning the phrase "Guest Ticket Contract." This Court finds that paragraph 9 does not rely on Exhibit 2. This objection is OVERRULED.
Plaintiff's third objection is to paragraph 10 on grounds that Kilgour's statement that Plaintiff received and accepted the Guest Ticket Contract is not based on actual knowledge. Kilgour's statement is based on the "Ticket Contract Acceptance Report" in Exhibit 4 containing an ID number that links the report to Plaintiff's reservation in Exhibit 2. Thus, the Court finds that the "Ticket Contract Acceptance Report" is sufficient to support Kilgour's declaration. This objection is OVERRULED.
Plaintiff's fourth objection is to paragraphs 10-14. Plaintiff argues that these paragraphs are "inadmissible" because the Guest Services Contract "speaks for itself." This objection lacks specificity and is OVERRULED.
Plaintiff's fifth objection is to paragraph 15 on grounds that it is based on an exemplar "Welcome Aboard" package instead of the actual "Welcome Aboard" package received by Plaintiff. The Court finds that Kilgour laid the foundation for testimony on Defendant's ticketing prodedures and notice to customers. An exemplar of what Defendant normally gives to customers is evidence of what Plaintiff received. This objection is OVERRULED.
Plaintiff's final objection is to paragraphs 16-17 on grounds that testimony that the Guest Ticket Contract appeared at all times on Defendant's website is irrelevant. The Court finds this evidence relevant to Plaintiff receiving reasonable notice. This objection is OVERRULED.
The following facts are taken from Plaintiffs' Complaint, the Guest Ticket Contract, and declarations submitted with the Motion.
In August 2009, Plaintiff Robert Hadlock ("Plaintiff"), a quadriplegic, purchased a ticket from Defendant for a "Mexican Riviera" cruise on the Norwegian Star. (Complaint ("Compl.") ¶¶ 4-5, Declaration of Jane Kilgour ("Kilgour Decl.") ¶¶ 7-8.) Before purchasing the ticket, Defendant made oral representations that Plaintiff's cabin had a wheelchair accessible balcony. (Compl. ¶ 5.) After boarding the vessel in October, Plaintiff discovered that the balcony and other areas of the ship were inaccessible by wheelchair. (Compl. ¶¶ 8-9.) Plaintiff claims (1) Fraud; (2) Negligent ...