Bacon v. Carnival Corporation

United States District Court

for the

Southern District of Florida

Michael Bacon, Plaintiff, )

)

Civil Action No. 21-22594-Civ-Scola

v. )

)

Celebrity Cruises, Inc., Defendant. )

Order Requiring Amended Complaint

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

This action arises from injuries allegedly sustained by Plaintiff Michael Bacon

when he says he hit his head as result of slipping on a wet surface while aboard

the Carnival Dream. For the reasons set forth below, the Court strikes Bacon’s

complaint as it is an impermissible shotgun pleading. (ECF No. 1.)

“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. (cleaned

up). 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.”).

The Eleventh Circuit has identified four typical types of shotgun pleadings,

one of which is where counsel “‘commits the sin of not separating into a different

count each cause of action or claim for relief.’” Wilson v. NCL Bahamas, 18-

25203-Civ, 2019 WL 2106470 (S.D. Fla. May 14, 2019) (Goodman, Mag. J.)

(quoting Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1321-23

(11th Cir. 2015)). That is, among other issues, one of the problems here.

In Bacon’s complaint, he attempts to cram multiple distinct theories of

liability into one count of negligence. Indeed, in just this one count, Bacon

purports to plead twenty-nine different ways Defendant Celebrity Cruises, Inc.,

committed negligence, including claims such as failure to maintain, failure to

warn, and failure to train, among many others, when each of these claims is a

distinct theory of liability that must be asserted independently and with

corresponding supporting factual allegations. 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). Bacon’s one count contains multiple

distinct causes of action that must all be separately pleaded.

Bacon is also admonished for alleging facts in the alternative. The Court

notes that Bacon’s complaint is replete with “and/or” alternative factual

allegations. “Either a fact or conclusion is alleged or isn’t. And any legal

conclusions that form the basis for any claims must be made in good faith and

supported by factual allegations.” Sanlu Zhang v. Royal Caribbean Cruises, Ltd.,

No. 19-20773-Civ., 2019 WL 8895224, at *2 (S.D. Fla. March 7, 2019) (Scola, J.);

see also Fed. R. Civ. P. 11. Upon repleading, Bacon must ensure that he has a

reasonable basis, based on the facts of this case, that there are indeed facts that

underscore every allegation in the complaint. The Court cannot discern which

factual allegations Bacon actually asserts in his complaint when facts are plead

in the alternative. Therefore, Bacon must remove any “and/or” alternative

factual pleadings from his amended complaint.

Finally, the Court notes that Bacon’s complaint purports to assert claims

for “[o]ther acts or omissions constituting a breach of the duty to use reasonable

care under the circumstances which are revealed through discovery.” (Compl.

19(cc).) And so, it is clear that, by way of his complaint, Bacon is baldly “seeking

to change the logical sequence of litigation” and “seeks discovery to learn

whether [he] may be able to assert a valid claim.” Sovereign Bonds Exch. v. Fed.

Republic of Ger., No. 10-21944-Civ., 2011 WL 13100214, at *1 (S.D. Fla. Aug. 9,

2011) (Altonaga, J.) (internal quotations omitted). This is not allowed. A plaintiff

may not file his complaint with the hopes of receiving discovery to see if he has

additional viable claims. Christie v. Royal Caribbean Cruises, Ltd., No. 20-22439-

Civ, 2020 WL 6158815, at *7 (S.D. Fla. Oct. 21, 2020) (Scola, J.).

Accordingly, the Court strikes Bacon’s complaint (ECF No. 1), as a shotgun

pleading. Bacon may file an amended complaint by August 4, 2021, provided he

complies with this order, Federal Rules of Civil Procedure 8(a) and 10(b), and the

Iqbal/ Twombly standard.

Bacon 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” (cleaned up)).

Done and ordered in Miami, Florida, on July 27, 2021.

[=< N. Scola, Jr.

United States District Judge