Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Specker v. Kazma

United States District Court, S.D. California

July 20, 2016

Elke Specker, Plaintiff,
v.
Michael Kazma, an individual; Mako Shark Diving, LLC, a California limited liability company; Yellow Charter Boat, Inc., a California corporation; In Personem CETUS SPECULA, In Rem, Defendants.

          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].

          HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Procedural History.

         Specker 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 claim.

         II. Facts Alleged in the Complaint.

         Specker 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.

         In her 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.

         On June 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.

         As a 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.

         Specker 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. ¶¶ 18-19.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.