Valiante v. NCL CORPORATION LTD.

United States District Court

for the

Southern District of Florida

Ann Valiante, Plaintiff, )

)

v. )

)

Civil Action No. 20-21374-Civ-Scola

NCL Corporation Ltd., doing )

business as Norwegian Cruise Line, )

Defendant. )

Order Striking Complaint

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

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

Valiante when she slipped and fell while a passenger aboard a ship operated by

Defendant NCL Corporation Ltd., doing business as Norwegian Cruise Line (Am.

Compl., ECF No. 4.) In her complaint, Valiante asserts one count, labeled

“Negligence,” against Norwegian but alleges at least twenty-one ways in which

the cruise line breached its duty of care or was otherwise negligent. (Id. at ¶ 16.)

These “breaches” raise numerous distinct theories of liability, including for

negligently creating or allowing a dangerous condition, negligent failure to warn,

and failure to train crewmembers. (Id. at ¶ 16(a)-(u).)

“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.

Through a single “negligence” count, Valiante attempts to cram multiple,

distinct theories of liability into one claim. (Compl. at ¶ 16.) At the same time,

many of the purported breached duties are redundant.1 To the extent each theory

is a separate cause of action, each must be asserted independently and with

supporting factual allegations.2 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 Defendant owed a duty of “reasonable care under the circumstances,” and

then “proceed[ed] to allege at least twenty-one ways in which Defendant 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”); Gharfeh v. Carnival Corp., 309 F. Supp. 3d 1317, 1333, n.7 (S.D. Fla.

2018) (Goodman, Mag. J.) (dismissing negligence claim where Plaintiff “has done

little more than assert fact-free, wholly conclusory, boilerplate allegations” and

requiring in any amended pleading that the plaintiff “allege facts, not merely

1 For example, the Court can discern no meaningful distinction between a failure to “properly

inspect and monitor the flooring of deck 12 for wetness or slipperiness” (Am. Compl. at ¶ 16.b.)

and a failure to “conduct reasonable inspections of the subject area” (id. at ¶ 16.r.).

2 For example, the facts supporting Valiante’s claim based on Norwegian’s failure to warn will

most certainly be distinct from Valiante’s claim based on Carnival’s failure to train its crew.

labels and boilerplate conclusions”); 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). Further, Valiante must eliminate any redundant allegations.

Accordingly, the Court strikes the complaint, (ECF No. 4), as a shotgun

pleading. Valiante may file a second amended complaint by April 14, 2020,

provided it complies with this order, Federal Rules of Civil Procedure 8(a) and

10(b), and the Igbal/Twombly standard.

Additionally, the Court also notes Valiante’s jurisdictional allegations have

not properly established diversity in this case. Under 28 U.S.C § 1332(a)(1), it is

the citizenship, or domicile, of an individual party that is the relevant inquiry,

not her or his residence. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d

1330, 1341-42 (11th Cir. 2011) (“Domicile is not synonymous with residence;

one may temporarily reside in one location, yet retain domicile in a previous

residence.”); Crist v. Carnival Corp., 410 F. App’x 197, 200 (11th Cir. 2010)

(explaining that an allegation that a party is a “resident” of a State is “insufficient

for diversity jurisdiction purposes because residency is not the equivalent of

citizenship”). Here, Valiante alleges only that she “is a resident of

Massachusetts.” (Compl. at 9 1.) This is insufficient to establish Valiante’s

citizenship and thus the Court cannot be assured that it has diversity

jurisdiction over this case. If Valiante fails to address this jurisdictional defect in

an amended complaint, the Court will assume jurisdiction of this case only under

the Court’s admiralty jurisdiction.

Valiante 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 Miami, Florida on wv N/E 20.

Robert N. Scola, Jr.

United States District Judge