Wheeler v. Carnival Corporation

United States District Court

for the

Southern District of Florida

Rebecca Wheeler, Plaintiff, )

)

v. ) Civil Action No. 20-20859-Civ-Scola

)

Carnival Corporation, Defendant. )

Order Requiring Amended Complaint

This matter is before the Court on an independent review of the record.

This maritime tort action arises from injuries allegedly sustained by the Plaintiff

Rebecca Wheeler when she slipped and fell while a passenger aboard a ship

operated by the Defendant Carnival Corporation (Compl., ECF No. 1.) For the

reasons set forth below, the Court strikes Wheeler’s complaint and demand for

jury trial.

1. Shotgun Pleading

In her complaint, Wheeler asserts three counts of negligence. Within her

third negligence count, Wheeler alleges at least sixteen ways by which Carnival

breached its duty of care to her. Many of these “breaches” raise distinct theories

of liability, some of which are redundant. (Compare, e.g., id. at ¶ 26.c. (“Failure

to adequately and regularly inspect the subject area for wet, dirty, and/or

slippery conditions.”) with id. at ¶26.d. (“Failure to adequately and regularly

inspect the subject area for hazards.”)).

“Courts in the Eleventh Circuit have little tolerance for shotgun

pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294-95 (11th Cir.

2018). They violate Federal Rules of Civil Procedure 8(a)(2) and 10(b), “waste

scarce judicial resources, inexorably broaden the scope of discovery, wreak

havoc on appellate court dockets, and undermine the public’s respect for the

courts.” Id. (quotations and alterations omitted). When presented with a shotgun

pleading, a district court “should strike the pleading and instruct counsel to

replead the case—if counsel could in good faith make the representations

required by Fed. R. Civ. P. 11(b).” Jackson v. Bank of Am., N.A., 898 F.3d 1348,

1357-58 (11th Cir. 2018) (“This is so even when the other party does not move

to strike the pleading”). One type of shotgun pleading is where a complaint fails

to “separate[] into a different count each cause of action or claim for relief.”

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23, n.13 (11th

Cir. 2015). The complaint here is this type of shotgun pleading.

Within the third “general negligence” count, Wheeler attempts to cram

multiple, distinct theories of liability into one claim. (Compl. at ¶ 26.) Each

distinct theory, however, is a separate cause of action that must be asserted

independently and with corresponding supporting factual allegations.1 See

Garcia v. Carnival Corp., 838 F. Supp. 2d 1334, 1337, n.2 (S.D. Fla. 2012)

(Moore, J.) (dismissing maritime negligence claim that “epitomizes a form of

‘shotgun’ pleading,” where the plaintiff alleged that the defendant owed a duty of

“reasonable care under the circumstances,” and then “proceed[ed] to allege at

least twenty-one ways in which [the d]efendant breached this duty”); Brown v.

Carnival Corp., 202 F. Supp. 3d 1332, 1338 (S.D. Fla. 2016) (Ungaro, J.) (“Simply

alleging that Carnival owed Plaintiff a duty of ‘reasonable care’ in a conclusory

fashion, while also pleading [“forty-one”] alleged breaches that purport to impose

a heightened duty upon Carnival, is not sufficient to state a valid negligence

claim under maritime law,” and holding that “the burden will remain on Plaintiff

to review her Complaint and ensure that each factual allegation is supported by

law and plausible facts, and is alleged in good faith.”); Gayou v. Celebrity Cruises,

Inc., No. 11-23359-Civ, 2012 WL 2049431, at *5-*6, n.2 (S.D. Fla. June 5, 2012)

(Scola, J.) (ordering plaintiff to amend complaint to “separately allege an

independent count” for various theories of liability that were lumped into a single

maritime negligence claim); Flaherty v. Royal Caribbean Cruises, Ltd., No. 15-

22295, 2015 WL 8227674, *3 n.3 (S.D. Fla. Dec. 7, 2015) (Lenard, J.) (same);

Doe v. NCL (Bahamas) Ltd., 2016 WL 6330587, at *3 (S.D. Fla. Oct. 27, 2016)

(Ungaro, J.) (holding that Plaintiff’s “boilerplate allegations” of breach of duty

failed to state a claim for negligent hiring and retention, training and supervision

under maritime law, and ordering Plaintiff to “allege each of these three claims

in separate Counts” in an amended complaint (emphasis in original)); Ciethami

v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1349-50 (S.D. Fla. 2016)

(Williams, J.) (holding that maritime negligence claim failed Rule 8(a), where the

Plaintiff’s “shotgun-style recitation[]” of “34 breaches of duty,” “without any

factual context,” makes “any meaningful assessment of her claims difficult”);

Gharfeh v. Carnival Corp., No. 17-20499, 2018 WL 501270, at *3, *6-*7 (S.D. Fla.

Jan. 22, 2018) (Goodman, Mag. J.) (dismissing maritime negligence count that

“improperly commingles claims” as an “impermissible shotgun pleading”); Ward

v. Carnival Cruises, No. 17-24628, 2019 WL 342027, at **2-3, n.1, n.2 (S.D. Fla.

Jan. 28, 2019) (Scola, J.) (collecting cases).

1 For example, the facts supporting Wheeler’s claim based on Carnival’s failure to warn will most

certainly be distinct from Wheeler’s claim based on Carnival’s failure to hire adequate staff

monitor the floor.

2. Jury Trial Demand

Wheeler asserts that she is proceeding under diversity jurisdiction, but

that “if diversity jurisdiction does not apply, then this matter falls under the

admiralty and maritime jurisdiction of this Court.” (ECF No. 1 at J 3.) However,

based on its jurisdictional allegations, the parties cannot proceed under diversity

jurisdiction because the parties are not diverse since both the Plaintiff and

Carnival are citizens of Florida. (ECF No. 1 at 44 1-2.) Nevertheless, Wheeler

demands a trial by jury. The Plaintiff's demand for a jury trial is incompatible

with a case proceeding solely under the Court’s admiralty jurisdiction. See

Beiswenger Enterprises Corp. v. Carletta, 86 F.3d 1032, 1037 (11th Cir. 1996)

(“[A]s in all admiralty cases, there is no right to a jury trial.”); Barry v. Shell Oil

Co., No. CIVA 13-6133, 2014 WL 775662, at *3 (E.D. La. Feb. 25, 2014) (“As

Plaintiffs claims here are solely based on general maritime law and there is a

lack of diversity among the parties, there is no way for Plaintiff to have a trial by

jury in this Court.”).

3. Conclusion

Accordingly, the Court strikes Wheeler’s complaint and demand for jury

trial, (ECF No. 1), as a shotgun pleading. Wheeler may file an amended

complaint by March 13, 2020, provided it complies with this order, Federal

Rules of Civil Procedure 8(a) and 10(b), and the Igbal/Twombly standard.

Specifically, Wheeler must assert each theory of liability as a separate cause of

action, being careful not to include redundant claim claims in her amended

pleading.

Further, the Court notes that a case proceeding solely under the Court’s

admiralty jurisdiction is not entitled to a jury trial.

Wheeler is forewarned that failure to comply with this order may result in

the dismissal of this case with prejudice or other appropriate sanctions. See

Jackson, 898 F.3d at 1358-59 (instructing that “if the plaintiff fails to comply

with the court’s order—by filing a repleader with the same deficiency—the court

should strike his pleading or, depending on the circumstances, dismiss his case

and consider the imposition of monetary sanctions.” (quotations omitted)).

Done and ordered, in Chambers, in Miami, Florida on Febru 28, 2020.

bon N. Scola, Jr.

United States District Judge