United States District Court, S.D. California
ORDER: (1) DENYING MOTION TO DISMISS BY MICHAEL KAZMA
AND MAKO SHARK DIVING, LLC [DKT. NO. 30]; AND (2) DENYING
MOTION TO DISMISS BY YELLOW CHARTER BOAT, INC. AND CETUS
SPECULA [DKT. NO. 31].
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
Elke Specker filed this case for negligence against all
Defendants for a shark bite she suffered while she
participated in an out-of-cage shark diving expedition led by
Michael Kazma. She alleges that admiralty and maritime
jurisdiction is proper in this court under Federal Rule of
Civil Procedure 9(h). Defendants disagree. Kazma, and his
company Mako Shark Diving, LLC (Mako) (collectively, Kazma),
filed a motion to dismiss for lack of subject matter
jurisdiction. Yellow Charter Boat, Inc. (Yellow Charter),
from whom Kazma chartered the boat, and the vessel the Cetus
Specula, also filed a motion to dismiss. The court reviewed
all papers and vacated oral argument. For the following
reasons, the court DENIES both motions to dismiss.
filed her complaint on November 16, 2015. Yellow Charter and
Cetus Specula filed an answer on January 5, 2016. Kazma filed
an answer on January 8, 2016. The parties consented to
magistrate judge jurisdiction. Kazma then filed a motion to
dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1). Yellow Charter and Cetus
Specula also filed a Rule 12(b)(1) motion. In its motion
Yellow Charter included a request under Rule 12(b)(6) to
dismiss the complaint against it for failure to state a
Facts Alleged in the Complaint.
names Kazma, Mako and Yellow Charter as in personam
defendants. Compl. ¶¶5-7. She names the vessel-the
Cetus Specula-as an in rem defendant. Compl. ¶ 8. She
alleges the Cetus Specula is a passenger vessel engaged in
commerce within the jurisdiction of this court. Id.
claim for negligence, Specker alleges that Kazma advertises
safe “out of cage encounters with Mako and Blue sharks
in San Diego, California.” Compl. ¶ 11. He also
advertises that “Mako Mike” Kazma is a
“shark behavioral expert and professional shark
feeder.” Id. Relying on these representations,
Specker alleges that she paid a fare to be a passenger on the
Cetus Specula, to participate in a shark diving expedition
with Kazma. Id.
13, 2015, Kazma took a group of divers out on navigable
waters aboard the Cetus Specula. Compl. ¶ 10. He chummed
the waters and then hand-fed sharks. Id. Specker
filmed the underwater shark activity. Id. But she
believes that Kazma was intoxicated during the shark feeding
activity, and thus improperly and negligently directed the
divers, including Specker, to an unsafe area. Id.
She alleges that to feed a swimming mako shark, Kazma held
the bait so that it led a shark directly toward Specker.
Id. That shark bit Specker. Id.
result of the bite, Specker says she sustained multiple
severe permanent injuries and disfigurement, as well as
emotional distress. Compl. ¶ 12. She then alleges the
bite was a “direct and proximate result of the Cetus
Specula’s negligence and/or gross negligence” in
the following respects:
a. By having the dive leader and supervisor, Defendant Kazma,
in an intoxicated state;
b. In creating and maintaining an unsafe condition;
c. In failing to operate and/or maintain the CETUS SPECULA in
a safe condition; and
d. In failing to properly hire, train and supervise its crew
and/or vessel staff.
Compl. ¶¶ 12, 14-15 (emphasis added). But Specker
does not expressly allege-as she does with the Cetus
Specula-that her bite and injuries were a direct and
proximate result of the negligence or gross negligence of any
of the in personam defendants. Finally, Specker alleges that
the Cetus Specula did not carry proper first aid or medical
equipment. Compl. ¶ 13.
also alleges a second claim for a maritime lien only against
the Cetus Specula, alleging that it is jointly and severally
liable for all damages that Specker sustained. Compl.