BRADBURY v. NCL (Bahamas) LTD.

United States District Court

for the

Southern District of Florida

Diane Bradbury, Plaintiff, )

)

v. )

Civil Action No. 21-20477-Civ-Scola

)

NCL (Bahamas) LTD, a Bermuda )

Corporation, d/b/a Norwegian )

Cruise Line and others, Defendants. )

Order Denying Motion to Dismiss and Motion to Strike

Plaintiff Diane Bradbury brings this maritime negligence action against

Defendant NCL (Bahamas) Ltd. (“NCL”) for injuries sustained when she fell on

the NCL Gem. (Am. Compl., ECF No. 6.) NCL has filed a motion to dismiss the

amended complaint as a shotgun pleading in violation of Rule 8 of the Rules of

Civil Procedure. (ECF No. 10.) In the alternative, NCL requests that the Court

strike paragraph 48 which alleges seven examples of prior similar incidents.

Bradbury opposes the motion arguing that the amended complaint is not a

shotgun pleading and provides NCL with notice of the facts comprising the

claims against it; and avers that striking paragraph 48 is not justified. (ECF No

11.) NCL timely replied. (ECF No. 12.) After careful consideration, the Court

denies NCL’s motion to dismiss and denies NCL’s motion to strike. (ECF No.

10.)

1. Background

Bradbury and her wife, Pam Kus, boarded the NCL Gem on November 8,

2019. (ECF No. 6 ¶ 20.) The vessel departed from Boston, Massachusetts. (Id.)

That evening, at approximately 7:30 p.m., Bradbury fell and hit her head on an

interior deck staircase between the 6th and 7th floors. (Id. ¶ 21.) The fall caused

Bradbury to lose consciousness and experience fluttering of her eyes. (Id.) NCL

personnel responded to the scene of the accident while Bradbury remained on

the floor. (Id. ¶ 22.) Kus, who witnessed the Plaintiff’s fall, explained to NCL

personnel that Bradbury had fallen and was unconscious. (Id.) At the time NCL

medical personnel responded to the scene, the vessel was on the outskirts of

the Port of Boston, Massachusetts. NCL personnel assisted Bradbury from the

floor and into a wheelchair and transported her to the shipboard medical

center. (Id. ¶ 24.) Kus reported the fall to the shipboard medical personnel,

including the fact that she had hit her head and had been unresponsive. (Id.)

Despite knowing the circumstances of Bradbury’s accident, NCL decided to

continue on its voyage instead of returning back to the nearest port. (Id.) The

NCL medical personnel did not perform a CT scan, a scan of the head of a

patient performed in cases of head trauma, because it did not have the medical

equipment to do so. (Id. ¶¶ 25-26.)

On November 10, 2019, Kus and Bradbury returned to the onboard

medical center. (Id. ¶ 29.) Kus advised the medical personnel that since her fall

Bradbury had developed a knot on her head, experienced headaches and

nausea, and been unable to complete crossword puzzles or answer questions.

(Id.) Doctors Gia Adamia and Francisco Nava, Defendants in this action,

examined Bradbury. (Id.) They asked Bradbury if she knew where she was, to

which Bradbury responded “you know.” (Id. ¶ 30.) The doctors advised

Bradbury to remain in the medical center. (Id.) Bradbury continued to become

more confused and disoriented, and she urinated on the floor unaware of

where she was. (Id.)

During the afternoon of November 10, 2019, Dr. Adamia called NCL’s

shoreside consultant medical services with the Cleveland Clinic of Florida. (Id.

¶ 35.) Dr. Adamia reported that Bradbury had fallen on November 8 and had

experienced confusion, including forgetting her spouse’s name, yet despite

those symptoms generally looked well and complained of a mild headache. (Id.)

That evening, NCL and its medical personnel decided to speed up the ship to

evacuate Bradbury at the next port in St. Thomas. Bradbury was evacuated

from the ship at approximately 10:00 p.m. on November 11, 2019. (Id. ¶ 38.)

The hospital in St. Thomas was unable to treat Bradbury’s condition and she

was air lifted to Jackson Memorial Hospital in Miami, Florida. (Id. ¶ 42.) As a

result of NCL and the medical personnel’s negligence, Bradbury suffered

permanent brain injury. (Id. ¶ 43.)

Bradbury filed this action against NCL on February 3, 2021 and has

since amended the complaint as a matter of course. (ECF Nos. 1, 3, 6.) The

operative complaint brings the following claims against NCL: (1) vicarious

liability for the acts of its medical staff under theories of respondeat superior

and apparent agency (Counts I, II); (2)negligent failure to evacuate Bradbury

(Count V); (3) negligent hiring of onboard medical staff (Count VI); and (4)

negligent provisioning and equipping medical facilities (Count VII). Bradbury

contends that NCL knew or should have known about the dangers posed by

negligent medical treatment, including the failure to timely evacuate emergency

passengers, and offers seven examples of prior similar incidents. (Id. ¶ 48.)

2. Legal Standard

Federal Rule of Civil Procedure 8(a) requires “a short and plain statement

of the claims” that “will give the defendant fair notice of what the plaintiff’s

claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme

Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do. Factual allegations must be enough to raise a right to relief above the

speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citations omitted).

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted).

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id. at 1950. When considering a

motion to dismiss, the Court must accept all of the plaintiff's allegations as

true in determining whether a plaintiff has stated a claim for which relief could

be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of

Rule 12(b)(6), a court generally may not look beyond the pleadings, which

includes any information attached to a complaint. U.S. ex. Rel. Osheroff v.

Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

3. Analysis

NCL moves to dismiss the complaint as a shotgun pleading and

alternatively, requests that the Court strike paragraph 48, which lists the

seven examples prior similar incidents. (ECF No. 10.) The Court addresses each

argument below.

A. The Amended Complaint is Not a Shotgun Pleading

NCL has moved to dismiss the amended complaint as an impermissible

shotgun pleading and offers no additional basis for dismissal. (ECF No. 10 at 2-

4.) NCL contends that the amended complaint is an impermissible shotgun

pleading because every count realleges and incorporates by reference the same

introductory factual allegations. The amended complaint, NCL argues, also

impermissibly incorporates irrelevant facts into each count. NCL argues that

these deficiencies makes it impossible for any of the Defendants to determine

what specific facts Bradbury intends to assert in support of her claims. (Id. at

4.)

The Eleventh Circuit has recognized four types of shotgun pleadings. See

Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1321 (11th Cir.

2015). The first is “a complaint containing multiple counts where each count

adopts the allegations of all preceding counts, causing each successive count to

carry all that came before and the last count to be a combination of the entire

complaint.” Id. at 1321. The second is a complaint that is “replete with

conclusory, vague, and immaterial facts not obviously connected to any

particular cause of action.” Id. at 1322. The third is a complaint that does not

separate “each cause of action or claim for relief” into a different count. Id. at

1323. And the final type of shotgun pleading is a complaint that “assert[s]

multiple claims against multiple defendants without specifying which of the

defendants are responsible for which acts or omissions, or which of the

defendants the claim is brought against.” Id. NCL argues that the amended

complaint constitutes the first or the second type of shotgun pleading. The

Court disagrees.

Bradbury’s amended complaint does not fall into the first category of

shotgun pleadings because although all of the counts in the complaint

incorporate almost every factual allegation in the complaint, none of the

individual counts adopts the allegations in the previous counts. Barmapov v.

Amuial, 986 F.3d 1321, 1325 (11th Cir. 2021) (holding that amended complaint

did not constitute the first type of shotgun pleading because “although nine of

the 19 counts incorporate almost every factual allegation in the complaint,

none of them adopts the allegations in the preceding counts.”).

Nor does the amended complaint constitute the second category of

shotgun pleadings. NCL’s motion seems to argue that if a complaint

incorporates by reference multiple factual allegations into each count or

includes some irrelevant allegations, the complaint is a de facto shotgun

pleading and must be dismissed. This argument overlooks the heart of the

matter. “The unifying characteristic of all types of shotgun pleadings is that

they fail to one degree or another, and in one way or another, to give the

defendants adequate notice of the claims against them and the grounds upon

which each claim rests. Weiland, 792 F.3d at 1323. Accordingly, the question

before the Court is whether the amended complaint puts NCL on notice of the

facts giving raise to the claims against it. The Court finds that it does.

Although the amended complaint includes some unnecessary factual

allegations, such as pictures of NCL crew members and general analysis of the

value using CT-scans, each negligence count is supported by sufficient facts

that will put NCL on notice of the basis for those claims. Indeed, each count

contains factual allegations that: (1) NCL owed a duty to Bradbury; (2) NCL

breached that duty; (3) the breach caused injury to Bradbury; and (4) Bradbury

suffered harm. See Irvin v. NCL (Bahamas) Ltd., No. 20-20929-CIV, 2020 WL

5937900, at *2 (S.D. Fla. Sept. 28, 2020) (Cooke, J.) (denying motion to dismiss

complaint as shotgun pleading because each count in the complaint contained

factual allegations supporting each element of that respective cause of actions);

see also Mollicone v. Universal Handicraft, No. CV 17-21468-CIV, 2017 WL

5897438, at *3 (S.D. Fla. Nov. 29, 2017) (Scola, J.) (denying motion to dismiss

on several grounds including shotgun pleading, explaining “[w]hile the Court

recognizes that the substantive counts in the third amended complaint are not

a model of drafting and reincorporate the allegations preceding them, the Court

does not find that such a technical violation alone renders the third amended

complaint so confusing as to justify dismissal in this case.”). For example,

Counts I and II allege negligent medical treatment under actual and apparent

agency theories, respectively. The complaint allocates two separate sections to

the facts that give rise to each theory of agency. (ECF No. 6 ¶¶ 49-56, 57-61.)

Additionally, each count dedicates a section to the specific acts by the medical

personnel which purportedly constitute negligent medical care. (Id. ¶¶ 66, 75.)

Count V alleges negligent failure to evacuate Bradbury and incorporates facts

regarding Bradbury’s accident, the reported symptoms, the timeline of NCL’s

decision to evacuate her, and the reasons NCL’s decisions fell short from the

standard of care. (Id. ¶¶ 1-48, 97-98.) Count VI for negligent hiring alleges that

NCL breached its duty to have competent shipboard doctors and medical

personnel by failing to conduct investigations, calling references, and ensuring

they had sufficient medical experience. (Id. ¶¶ 105-109.) Lastly, Count VII for

negligent provisioning incorporates general factual allegations which put NCL

on notice that it was allegedly negligent for failing to have a CT-scan or MRI

equipment to enable the medical personnel to properly treat head injuries. (Id.

¶¶ 26, 115.) The Court finds that the amended complaint is not a shotgun

pleading. Accordingly, NCL’s motion to dismiss is denied. (ECF No. 10.)

B. Motion to Strike

NCL argues, in the alternative, that paragraph 48 should be stricken

because the alleged prior incidents are factually distinguishable from

Bradbury’s purported injury. (ECF No. 10 at 5-6.) Rule 12(f) allows the Court to

“strike from a pleading ... any redundant, immaterial, impertinent, or

scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added). However, “Rule

12(f) motions to strike on any of these grounds are not favored, often being

considered purely cosmetic or time wasters, and are regularly “denied unless

the challenged allegations have no possible relation or logical connection to the

subject matter of the controversy and may cause some form of significant

prejudice to one or more of the parties to the action.” Kenneth F. Hackett &

Assocs., Inc. v. GE Cap. Info. Tech. Sols., Inc., 744 F. Supp. 2d 1305, 1309 (S.D.

Fla. 2010) (Altonaga, J.) (denying motion to strike under Rule 12(f)).

NCL argues that the prior incidents should be stricken because they are

wholly unrelated to Bradbury’s claims as they involve different types of

injuries. (ECF No. 10 at 5-6.) NCL further argues that paragraph 48 is

prejudicial because it charges it with notice of a history of failing to timely

evacuate its passengers or provide adequate medical treatment. (ECF No. 12 at

5.) In response, Bradbury argues that although the alleged prior incidents

involve different kinds of injuries such as broken ribs or pneumonia, they all

relate to NCL’s failure to competently treat medical conditions or timely

evacuate emergent passengers, which are central to Bradbury’s claims. (ECF

No. 11 at 9-11.)

The Court finds that at this early stage of the case and without the

benefit of evidence of prior incidents, the striking of paragraph 48 is not

justified. Moreover, the alleged prior incidents are not prejudicial to NCL

because they are just that—allegations. The filing of the amended complaint

does not by itself establish that NCL had notice that it was providing negligent

care or was negligent in deciding when to evacuate passengers. The parties

may dispute the admissibility of the alleged prior incidents in motions in limine

or at summary judgment. NCL’s motion to strike is denied. (ECF No. 10.)

4. Conclusion

For these reasons, NCL’s motion to dismiss is denied and NCL’s motion

to strike paragraph 48 is denied. (ECF No. 10.)

Done and ordered in Miami, Florida, on June 17, 2021.

Robert N. Scola, Jr.

United States District Judge