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Sobel v. Institute for Shipboard Education

United States District Court, W.D. Virginia, Charlottesville Division

January 26, 2017

MOLLY SOBEL, Plaintiff,


          Hon. Glen E. Conrad, Chief United States District Judge

         This personal injury action arises from a sexual assault that occurred while the plaintiff, Molly Sobel, was studying abroad through a program offered by the Institute for Shipboard Education ("ISE"). The case is presently before the court on ISE's renewed motion for summary judgment and Sobel's motion for leave to file an amended complaint. For the reasons that follow, ISE's motion will be granted and Sobel's motion will be denied. Additionally, Sobel's claims against Shailesh Tripathi, the alleged perpetrator of the sexual assault, will be dismissed without prejudice.


         The following facts from the summary judgment record are either undisputed or presented I in the light most favorable to the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).

         ISE is a nonprofit corporation based in Delaware, which has its principal place of business in Charlottesville, Virginia. ISE administers the Semester at Sea study abroad program, which I offers students the opportunity to take college courses aboard a passenger cruise ship that travels internationally.

         Sobel, a California resident, participated in the Semester at Sea Spring 2013 Voyage. In order to gain admission to the program, Sobel completed an online application in which she agreed to "accept as binding any and all conditions that normally apply to undergraduate admission to Semester at Sea, including those set forth in the Voyager's Handbook and the ticket contract...." 2d Supp'l Decl. of Michael Zoll ("Zoll DecL") ¶ 4, Docket No. 68-1. The referenced ticket contract (the "Ticket Contract") and the Voyager's Handbook were available for review on ISE's website through Sobel's My Voyage page. Upon applying to attend the program, Sobel was given a password that allowed her to access those documents and other program materials. Every time that she logged in to her MyVoyage page, Sobel checked a box stating that she agreed to take electronic delivery of the Voyager's Handbook, the Ticket Contract, and other documentation contained therein. Sobel logged in to the website more than 100 times and had access to the Ticket Contract through the website for more than one year.

         Before Sobel's Semester at Sea program began, she was provided a "Voyage Preparations" package and "Embarkation Information." Id. at ¶¶ 7, 9. The first page of both documents indicates that the "most important thing" that a student can do to prepare for her voyage is to read the Voyager's Handbook and the Ticket Contract, which "contain extremely important information." Id.

         As is relevant in the instant action, the Voyager's Handbook emphasizes that ISE is committed to the "health and safety" of its students. Voyager's Handbook at § IX, Docket No. 49-2. In a section pertaining to "field trips, " the Voyager's Handbook states that "ISE-sponsored field trips are provided by reliable operators who meet selection criteria, participate in performance evaluations, and have long-standing professional ties to the institute, " and that "[t]hese tour operators arrange for safe and reliable transportation, select hotels that provide a secure environment[, ] and provide knowledgeable guides . . . ." Id. The Voyager's Handbook strongly discourages students from participating in field trips that are not sponsored by ISE, since they may not adhere to ISE's "stringent safety standards." Id. at § XI.

         The Ticket Contract includes a number of provisions that affect the plaintiffs legal rights, including a limitation provision applicable to lawsuits for bodily injury or death. The first line of the Ticket Contract emphasizes that the "document is a contract, " that "[a]ll of its provisions are important, " and that particular attention should be given to certain sections, including the "time limitations to give notice of claims, file and serve suit (Section 15)." Ticket Contract at 1, Docket No. 26-2. Section 15 contains two limitation provisions, one applicable to claims for "bodily injury or death" and another applicable to "other claims." Id. at § 15. Section 15(a) provides that actions resulting from bodily injury or death must be filed "within 1 year from the date of the bodily injury or death." Id. at § 15(a). Section 15(b) states that lawsuits resulting from "any damage, delay, or other loss of any nature or cause whatsoever other than for death or bodily injury" must be "filed within 6 months from the date the voyage terminated." Id., at § 15(b).

         Sobel and other students participating in the 2013 Spring Voyage departed on a passenger ship from San Diego, California on January 9, 2013. On March 6, 2013, the ship docked in Cochin, India. Prior to docking, Sobel purchased a ticket for an ISE-sponsored field trip to Agra and Varanasi, which was organized and provided by Abercrombie & Kent India. Shailesh Tripathi, an employee of Abercrombie & Kent, served as the tour guide for Sobel's group. On the night of March 9, 2013, Sobel went to Tripathi's hotel room for a palm reading. Tripathi subsequently grabbed Sobel's genitals and forced her to perform a sexual act on him. He finally released Sobel from his hotel room around 1:00 a.m. on March 10, 2013.

         Procedural History

         Nearly two years later, on March 6, 2015, Sobel filed the instant action against ISE, Abercrombie & Kent USA LLC, Abercrombie & Kent Destination Management, and Tripathi in the United States District Court for the Northern District of California, asserting claims of negligence, negligent hiring and supervision, sexual battery, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Sobel voluntarily dismissed her claims against the Abercrombie & Kent defendants on June 5, 2015. On June 8, 2015, ISE moved to transfer the case to a federal district court in Virginia, based on a forum selection clause in the Ticket Contract. Without challenging the validity of the Ticket Contract or its application to the complaint, Sobel filed a statement of non-opposition to ISE's motion, and requested that the case be transferred to the Western District of Virginia. The case was transferred to this court on August 4, 2015.

         On August 17, 2015, ISE moved for summary judgment on the basis that the plaintiffs claims are barred by the one-year limitation provision in the Ticket Contract. The court held a hearing on the motion on December 21, 2015. Following the hearing, the court denied the motion without prejudice as premature, and gave the parties 90 days in which to conduct discovery on the issue of the enforceability of the limitation provision. The court noted that ISE could renew its motion for summary judgment upon the completion of such discovery.

         ISE filed a renewed motion for summary judgment on June 13, 2016. On September 15, 2016, the court held a hearing on that motion, as well as Sobel's motion to compel ISE to produce a representative for a Rule 30(b)(6) deposition. In a subsequent order entered on September 20, 2016, the court permitted Sobel to take a Rule 30(b)(6) deposition of ISE, and took ISE's renewed motion for summary judgment under advisement pending the conduct of the deposition. The order provided that, "[f]ollowing the deposition, plaintiff shall have (30) days in which to file a supplemental response to ISE's motion and, if necessary, a motion to amend the complaint." Docket No. 72.

         Sobel did not comply with the court's order. Because she took the Rule 30(b)(6) deposition on October 12, 2016, Sobel had until November 11, 2016 to file a supplemental response to ISE's motion for summary judgment or a motion to amend her complaint. Sobel did not file anything on or before that date. Consequently on December 21, 2016, ISE filed a notice requesting that the court rule on its renewed motion for summary judgment.

         On December 22, 2016, more than 60 days after the Rule 30(b)(6) deposition, Sobel filed a motion for extension of time in which to seek leave to file an amended complaint. Several days later, Sobel filed a motion for leave to amend, along with a proposed amended complaint. To date, she has not filed a supplemental response to ISE's renewed motion for summary judgment.

         Standards of Review

         Rule 56 of the Federal Rules of Civil Procedure permits a party to move for summary judgment. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (finding summary judgment appropriate "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"). In deciding whether to grant a summary judgment motion, the court must view the record in the light most favorable to the non-moving party, and draw all reasonable inferences in her favor. Anderson, 477 U.S. at 255; Libertarian Party of Va. 718 F.3d at 312.

         Rule 15 of the Federal Rules of Civil Procedure provides that a party may amend her pleading with leave of court, which shall be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). Nevertheless, a court may deny a request for leave to amend "when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Balas v. ...

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