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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO:

AMY HOWARD and KENNETH HOWARD, her husband,

Plaintiffs,

v.

KERZNER INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL BAHAMAS LIMITED, a Bahamian company; ISLAND HOTEL COMPANY LIMITED, a Bahamian company; PARADISE ISLAND LIMITED, a Bahamian company; BOBBY FLAY’S MESA GRILL BAHAMAS.

Defendants. ________________________________________/

COMPLAINT FOR DAMAGES

Plaintiffs, AMY HOWARD and KENNETH HOWARD, her husband sue KERZNER

INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL

BAHAMAS LIMITED, a Bahamian company; ISLAND HOTEL COMPANY LIMITED,

a Bahamian company; and PARADISE ISLAND LIMITED, a Bahamian company and in support

thereof state as follows:

1. This is an action in diversity under 28 U.S.C. § 1332 and/or all other applicable law with

damages in excess of Seventy-Five Thousand ($75,000.00) Dollars, exclusive of interest and

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costs.

2. Venue is proper in the U.S. District Court, Southern District of Florida, pursuant to 28

U.S.C. § 1391 and additionally for the reasons stated below.

3. At all times material hereto, AMY HOWARD and KENNETH HOWARD are and were

United States citizens, residing and domiciled in the state of North Carolina.

4. Defendant, KERZNER INTERNATIONAL LIMITED (hereinafter “KERZNER”), was

formerly known as “Sun International Hotels Limited.”

5. KERZNER’s corporate headquarters and “nerve center” is located in Plantation, Florida.

6. Defendant, KERZNER, is a Bahamian publically traded holding company, which functions

as the parent company to multiple subsidiaries. KERZNER, and its subsidiaries own and

operate the Atlantis Resort, located in Paradise Island, Bahamas.

7. The Atlantis Resort has been doing business continuously since it opened in 1994.

8. KERZNER INTERNATIONAL BAHAMAS LIMITED is a wholly owned subsidiary of

KERZNER, and the two entities operate as one as it relates to the resort on Paradise Island,

Bahamas, known to the public and most commonly referred to as “The Atlantis Resort.”

9. KERZNER is the holding and parent company of KERZNER INTERNATIONAL

BAHAMAS LIMITED, (hereinafter “KERZNER BAHAMAS”), which was formerly known

as “Sun International Bahamas Limited.”

10. Though the corporate names have been changed, KERZNER and KERZNER BAHAMAS

are one and the same to the corporations formerly known as “Sun International Hotels

Limited” and “Sun International Bahamas Limited.”Defendant, KERZNER (and its

subsidiary KERZNER BAHAMAS), is and was a Bahamian company doing business in the

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Southern District of Florida with its principal place of business located at 1000 South Pine

Island Road, Plantation, Florida 33324.

11. Defendant, KERZNER, is the holding and parent company of Kerzner International Resorts,

Inc., a Florida corporation, located at1000 South Pine Island Road, Plantation, Florida, which

primarily functions as a marketing, sales, advertising, reservation, wholesale tour service and

travel business for the Atlantis Resort, located in Paradise Island, Bahamas.

12. Additional corporations, all subsidiaries of KERZNER, are registered with the State of

Florida as having businesses that operate from the same office located at1000 South Pine

Island Road, Plantation, Florida 33324. Those corporations include, but are not limited to:

Kerzner International Management Services, Inc.; Kerzner International Development

Services, Inc.; and, Kerzner International North America, Inc.

13. Defendant, ISLAND HOTEL COMPANY LIMITED (hereinafter “ISLAND HOTEL”), is

a Bahamian company that is also a subsidiary of Defendant, KERZNER and KERZNER

BAHAMAS.

14. Defendant, ISLAND HOTEL, as a subsidiary of Defendant, KERZNER, is involved on the

operations, management, maintenance, supervision, and business practices of the Atlantis

Resort in Paradise Island, Bahamas.

15. Defendant, PARADISE ISLAND LIMITED, (hereinafter “PIL”) is a Bahamian company,

is a subsidiary of Defendant, KERZNER, (as well as its subsidiary KERZNER BAHAMAS).

16. Defendant, PIL, as a subsidiary of Defendant, KERZNER, is involved on the operations,

maintenance, supervision, and business practices of the Atlantis Resort located in Paradise

Island, Bahamas.

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17. At all material times, KERZNER is subject to the personal jurisdiction of this Court as

follows:

a. KERZNER DEFENDANTS, either personally or through an agent, e.g., Kerzner

International Resorts, Inc., a Florida corporation, and/or KERZNER BAHAMAS, a

Bahamian corporation, operated, conducted, engaged in or carried on a business or

business ventures in Florida.

b. KERZNER DEFENDANTS have an office or agency in Florida, to-wit: 1000 South

Pine Island Road, Plantation, Florida 33324. Therefore, jurisdiction exists pursuant

to Fla. Stat. §48.193(1)(a).

c. KERZNER DEFENDANTS are and were at all material times engaged in substantial

and not isolated interstate and intrastate activity in Florida and, therefore, is subject

to this Court’s jurisdiction pursuant to Fla. Stat. §48.193(2).

d. KERZNER DEFENDANTS purchase, sell and/or lease tangible and intangible

personal property through brokers, jobbers, wholesalers or distributors to persons,

firms and corporations in Florida and, therefore, is conclusively presumed to be both

engaged in substantial and not isolated activities in Florida and operating,

conducting, engaging in, or carrying on a business or business venture in Florida

pursuant to Fla. Stat. §48.181(3).

18. Further, KERZNER DEFENDANTS (and their former entities, Sun International) have used

both the Miami-Dade Circuit Court and the United States District Court for their collections,

casino endeavors and breach of contract disputes.

19. In these multiple instances of litigation, KERZNER (and its former corporate identities) filed

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suit as the Plaintiff and, therefore, not only submitted itself to the jurisdiction of the United

States courts, they sought to avail themselves of it.

20. In multiple instances, this Court has held jurisdiction and venue are proper in personal injury

and tort related claims. As examples:

a. KERZNER DEFENDANTS had final judgment entered against it after a trial in

Miami-Dade County Circuit Court in the Case of Wagner v. Sun International Hotels

Limited, et al., Case No. 95-19988 (Judge Goldman), which involved a Dade County

resident who sued KERZNER for using his modeling photographs without his

permission and in sending brochures using his photographs to travel agencies in

Florida.

b. KERZNER DEFENDANTS were successfully sued in the Circuit Court of the

Eleventh Judicial Circuit in and for Miami-Dade County, Florida, in the cases of

Postell v. Sun International Resorts, Inc., Case No. 99-11601 CA 05, and Emery v.

Sun International Resorts, et al, Case No. 99-10892 CA 01. In each of these cases,

it was alleged that KERZNER used the plaintiffs’ modeling photographs without

their permission. In each of these cases, KERZNER contested personal jurisdiction

over them by the Dade County Court, but later withdrew the objection as

memorialized in an Agreed Order dated June 13, 2000, in the Emery case.

KERZNER has proceeded to file answers and affirmative defenses in both Emery and

Postell.

c. KERZNER has been sued for using models’ photographs without their consent in the

cases of Delvecchio v. Sun International Resorts, Inc., et al, Case No. 95-19989 CA

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05; Muenzner v. Sun International Resorts, Inc., et al., Case No. 99-11742 CA 04;

and Wilder v. Sun International Resorts, Inc., et al., Case No. 99-11716 CA 27. All

of these actions were filed in the Circuit Court of the Eleventh Judicial Circuit in and

for Miami-Dade County, Florida, and in none of these cases was the “absence” of

personal jurisdiction raised as a defense.

d. KERZNER DEFENDANTS were specifically found to be doing business in the

Southern District of Florida in Meier v. Sun International Hotels, Ltd., et al, United

States Court of Appeals for the 11 Circuit, No. 01-14431, Sun Trust Bank, Miami,th

etc., v. Sun International Hotels Limited, et al., Case No. 00-3741-Civ-Huck; and

Ward v. Kerzner International Hotels Limited, et al., Case Number 03-23087-Civ-

Jordan/Brown.

e. KERZNER was sued in the United States District Court for the Southern District of

Florida for personal injury by guests of the Atlantis Hotel in the following negligent

security (sexual assault) cases: Doe v. Sun International Hotels Limited, et al., Case

No. 97-3359-CIV-GOLD (defendant’s motion to dismiss for lack of jurisdiction and

forum non-conveniens denied) (Sun International is now Kerzner); Bostrom v.

Kerzner, et al., Case No. 07-21217-CIV-HUCK (settled); and Larsen v. Kerzner, et

al., Case No. 08-22031-CIV-MORENO/TORRES (settled). In none of these cases

did KERZNER contest the Court’s personal jurisdiction over it.

21. KERZNER’S Chief Operating Officer, Bonnie Biumi, has an office in Plantation, Florida.

22. KERZNER’S national sales office is based in Plantation, Florida, at the above-referenced

South Florida address.

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23. KERZNER’S addresses in France, Germany, Japan, Mauritius, the United Kingdom, and

Republic of South Africa are listed on the back of its marketing brochure, along with its sole

United States address identified as 1000 South Pine Island Road, Plantation, Florida 33324.

24. KERZNER DEFENDANTS, primarily through Kerzner International Resorts, Inc., a Florida

corporation, advertises and otherwise extensively markets the Atlantis Resort in Florida via

radio, television, billboard, and direct mailings originating from its Plantation office.

25. KERZNER has a website, to-wit: www.atlantis.com containing multiple local (Florida)

contacts for KERZNER properties. All have telephone numbers which are handled from the

Plantation, Florida, office.

26. KERZNER DEFENDANTS regularly receive mail and correspondence at the Plantation

office.

27. KERZNER DEFENDANTS’ officers, employees and supervisors, who regularly work at the

at the Atlantis Resort in Paradise Island, Bahamas, attend meetings at the Plantation address.

28. KERZNER DEFENDANTS direct potential investors to contact it at the Plantation address.

29. At all material times, KERZNER dictates the standards and practices for the operation of the

Atlantis Resort, and KERZNER DEFENDANTS monitors and oversees the implementation

of these standards of operation by Defendant, KERZNER, and its subsidiaries.

30. In turn, KERZNER BAHAMAS monitors and oversees the implementation of KERZNER’S

standards of operation on a daily basis by employees of its subsidiaries.

31. KERZNER DEFENDANTS, either personally or through Kerzner International Resorts, Inc.,

sells entertainment/travel and vacation packages persons, including Floridians.

32. KERZNER DEFENDANTS have bank accounts in the State of Florida in its name and from

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which the direct employees of Defendant, Kerzner International Resorts, Inc., are able to

make deposits and write checks against and in payment of various vendors in the United

States and Florida for items purchased for use at the Atlantis Resort, e.g., food, china, linens,

bedding, etc.

33. KERZNER DEFENDANTS have had bank accounts at the Miami, Florida, branch of City

National Bank.

34. BOBBY FLAY’S MESA GRILL BAHAMAS (hereinafter MESA GRILL) is and was a

restaurant chain operating in the Atlantis Resort.

35. The Bobby Flay and “Mesa” brand names are used for restaurants and products sold

nationwide.

36. Specifically, products and goods branded with the Bobby Flay name are sold throughout

Florida under both the Mesa brand name and Bobby Flay’s brand.

37. Bobby Flay is a nationally renowned chef and sells his food products nationally online and

his kitchen wares through Kohl’s stores throughout the country under the Bobby Flay brand

name.

38. In Florida alone, Kohl’s sells Bobby Flay branded kitchenware through multiple stores in 48

cities throughout the state.

39. On or about June 18 2009, Plaintiff, AMY HOWARD, dined at the Bobby Flay’s Mesath

Grill at Atlantis, where she contracted ciguatera poisoning from eating fish.

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COUNT I NEGLIGENCE OF KERZNER DEFENDANTS

40. At all times material hereto, KERZNER DEFENDANTS, personally or through subsidiaries

and agents within their control, owned, operated and managed the Atlantis Resort.

41. At all times material hereto, KERZNER DEFENDANTS, owed Plaintiff a duty to use

reasonable care in the selection, sale and distribution of fish to its guests, the observance of

which would have prevented AMY HOWARD from contracting a dangerous form of food

poisoning.

42. KERZNER DEFENDANTS breached this duty by selecting, selling and distributing fish

known to carry ciguatoxins.

43. KERZNER DEFENDANTS had a further duty to ensure that restaurants on resort property

did not select, sell or distribute fish known to carry ciguatoxins.

44. KERZNER DEFENDANTS breached that duty by allowing MESA GRILL to select, sell and

distribute fish containing ciguatoxins.

45. KERZNER DEFENDANTS were in a better position to know the dangers of consuming fish

such as grouper which may carry ciguatoxins capable of poisoning a guest, such as AMY

HOWARD.

46. As a direct and proximate cause of the aforementioned acts and omissions, AMY HOWARD

contracted ciguatera fish poisoning and bodily injuries as a result of said poisoning.

WHEREFORE, Plaintiffs AMY HOWARD and KENNETH HOWARD, demand judgment

against KERZNER DEFENDANTS for damages, interest and costs associated with this action.

COUNT II NEGLIGENCE OF MESA GRILL

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47. At all times material hereto, MESA GRILL, owed Plaintiff a duty to use reasonable care

in the selection, sale and distribution of fish to its patrons, the observance of which would

have prevented AMY HOWARD from contracting a dangerous form of food poisoning.

48. MESA GRILL breached this duty by selecting, selling and distributing fish known to

carry ciguatoxins.

49. MESA GRILL was in a better position to know the dangers of consuming fish such as

grouper which may carry ciguatoxins capable of poisoning a guest, such as AMY

HOWARD.

50. MESA GRILL had a duty to warn AMY HOWARD of the dangers of eating fish such as

grouper, including ciguatera poisoning.

51. MESA GRILL breached that duty by failing to warn AMY HOWARD of the dangers of

eating grouper.

52. As a direct and proximate cause of the aforementioned acts and omissions, AMY

HOWARD contracted ciguatera fish poisoning and bodily injuries as a result of said

poisoning.

WHEREFORE, AMY HOWARD and KENNETH HOWARD demand judgment against

MESA GRILL for damages, interest and costs associated with this action.

DAMAGES

Plaintiff, AMY HOWARD, sustained pain and suffering, mental anguish, emotional distress,

permanent injury, loss of wages, incurred medical expenses, and has sustained a loss of the

capacity for the enjoyment of life in the past and will incur these losses in the future.

WHEREFORE, Plaintiff AMY HOWARD demands judgment against KERZNER

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DEFENDANTS and MESA GRILL, for damages, interest and costs associated with this action.

LOSS OF CONSORTIUM

53. At all times material hereto, Plaintiff, KENNETH HOWARD, was and is the lawful spouse

of Plaintiff, AMY HOWARD.

54. As a direct, proximate and foreseeable result of the above described acts or omissions of

Defendants, Plaintiff, KENNETH HOWARD, has in the past and will in the future suffer

diminishment of her husband’s companionship, society, and consortium and has in the past

and will in the future incur medical expenses for his care and treatment. These damages

were the direct and proximate result of the acts and omissions of Defendants.

WHEREFORE, Plaintiff AMY HOWARD demands judgment against KERZNER

DEFENDANTS and MESA GRILL, for damages, interest and costs associated with this action.

DEMAND FOR JURY TRIAL

Plaintiffs demand a jury trial.

DATED this11th day of June, 2012.

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LAW OFFICES OF ROBERT L. PARKS, P.L. Counsel for Plaintiff 2121 Ponce de Leon Boulevard, Suite 505 Coral Gables, Florida 33134 Telephone: 305-445-4430 Facsimile: 305-445-4431

By /s/ Robert L. Parks Robert L. Parks, Esq. Florida Bar No. 61436

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO: 12-CV-22184-FAM

AMY HOWARD, and KENNETH HOWARD, her husband Plaintiffs, v. KERZNER INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL BAHAMAS LIMITED, a Bahamian company, ISLAND HOTEL COMPANY LIMITED, a Bahamian company; and PARADISE ISLAND LIMITED, a Bahamian company. Defendants. ________________________________________/

DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT FOR DAMAGES

Defendants, Kerzner International Limited, Kerzner International Bahamas Limited,

Island Hotel Company Limited, and Paradise Island Limited (collectively “Defendants”), hereby

file this Answer and Affirmative Defenses to Plaintiff’s Complaint for Damages (“Complaint”)

and state as follows:

As a preliminary matter, pursuant to the agreement of the parties, Plaintiffs have

voluntarily dismissed Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit

without prejudice. See DE 11. As such, no response from Mesa Grill is required. To the extent a

response is required, Mesa Grill denies the allegations in the Complaint and adopts the

affirmative defenses herein.

1. Admitted that this purports to be an action against Defendants, but denied that any

damages exist or that damages exceed the jurisdictional requirement, exclusive of costs and

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interest.

2. Denied.

3. Without knowledge and therefore denied.

4. Admitted that long ago it was known by that name.

5. Denied as phrased.

6. Denied.

7. Denied as phrased.

8. Denied.

9. Denied as phrased.

10. Denied as phrased.

11. Denied as phrased.

12. Denied as phrased.

13. Admitted.

14. Admitted it is the operator of Atlantis, otherwise denied as phrased.

15. Denied as phrased.

16. Denied.

17. Denied.

18. Denied as phrased.

19. Denied as phrased.

20. Denied as phrased.

21. Admitted only that Bonnie Biumi has had an office in Plantation, Florida,

otherwise denied as phrased.

22. Denied as phrased.

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23. Denied as phrased.

24. Admitted only that Atlantis Resort is advertised in Florida, otherwise denied as

phrased.

25. Denied as phrased.

26. Denied as phrased.

27. Denied as phrased.

28. Denied as phrased.

29. Denied.

30. Denied as phrased.

31. Denied as phrased.

32. Denied as phrased.

33. Denied as phrased.

34-38 Pursuant to the agreement of the parties, Plaintiffs have voluntarily dismissed

Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit without prejudice. As such,

no response from Mesa Grill is required for paragraphs 34 through 38. To the extent a response

is required, Mesa Grill denies the allegations in paragraphs 34 through 38.

39. Admitted only that Amy Howard alleges she suffered personal injury as a result

of eating fish at Mesa Grill, otherwise denied.

COUNT I NEGLIGENCE OF KERZNER DEFENDANTS

40. Denied as phrased.

41. Denied as phrased.

42. Denied.

43. Denied as phrased.

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44. Denied.

45. Denied.

46. Denied.

COUNT II NEGLIGENCE OF MESA GRILL

47-52 Pursuant to the agreement of the parties, Plaintiffs have voluntarily dismissed

Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit without prejudice. As such,

no response from Mesa Grill is required for paragraphs 47 through 52. To the extent a response

is required, Mesa Grill denies the allegations in paragraphs 47 through 52.

DAMAGES (Unnumbered). Denied.

LOSS OF CONSORTIUM

53. Unknown, therefore denied.

54. Denied.

DEFENDANTS’ AFFIRMATIVE DEFENSES

As separate and complete defenses, based upon information and belief, Defendants state

as follows:

FIRST AFFIRMATIVE DEFENSE

Defendants assert that this cause of action is subject to Terms and Conditions as

described on the Atlantis, Paradise Island, Resort website and the guest registration, including

but not limited to its forum selection clause which mandates The Bahamas as the only proper

forum for this dispute.

SECOND AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard did not exercise ordinary care or caution to avoid the

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events or circumstances which caused her injuries; and that Amy Howard own failure to exercise

such care was the direct and proximate cause of her injuries.

THIRD AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard own negligence and/or own conduct was the sole,

proximate cause of her injuries.

FOURTH AFFIRMATIVE DEFENSE

Defendants assert that the incident was the result of superseding, intervening, and/or

unforeseeable causes from which the Defendants had no duty to protect Amy Howard.

FIFTH AFFIRMATIVE DEFENSE

Defendants assert that any claims Amy Howard has against Defendants resulting from

any events occurring in The Bahamas shall be governed by and construed in accordance with the

laws of the Commonwealth of The Bahamas

SIXTH AFFIRMATIVE DEFENSE

Defendants assert that the Supreme Court of The Bahamas is the exclusive venue for any

claims Amy Howard has against Defendants resulting from any events occurring in The

Bahamas.

SEVENTH AFFIRMATIVE DEFENSE

Defendants assert that as a result of the conduct, acts or omissions of Amy Howard as

asserted in the preceding and subsequent Affirmative Defenses (including but not limited to the

Second and Third Affirmative Defenses), that Amy Howard is estopped from claiming the

damages alleged in the Complaint.

EIGHTH AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard had actual knowledge and/or notice of any alleged

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dangerous condition, if any, and realized and appreciated the