Roberts v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 19-cv-23885-BLOOM/Louis

ERIKA ROBERTS,

Plaintiff,

v.

CARNIVAL CORPORATION,

Defendant.

_____________________________/

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant Carnival Corporation’s (“Defendant”)

Motion for Summary Judgment, ECF No. [41] (“Motion”), filed on January 19, 2022. The Court

has carefully reviewed the Motion, all opposing and supporting submissions, the record in this

case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion

is granted.

I. BACKGROUND

Plaintiff Erika Roberts (“Plaintiff”) initiated this action against Defendant on September

17, 2019, arising from personal injuries she sustained while onboard Defendant’s cruise ship. ECF

No. [1] (“Complaint”). According to the Complaint, on November 12, 2017, while walking on the

pool deck of the Carnival Victory, Plaintiff slipped and fell and sustained various injuries. Id. ¶ 18.

After her fall, Plaintiff called the infirmary and was told that someone would come to retrieve her.

Id. However, despite the representation, no one came to assist her, and she was forced to walk to

the infirmary for treatment for her injuries. Id. Plaintiff now seeks damages from Defendant for

the injuries she sustained as a result of the incident and asserts the following claims for relief:

negligent maintenance (Count I); negligent failure to warn (Count II); negligent training of

shipboard crewmembers (Count III); and negligent design (Count IV). See generally id.

Regarding the instant Motion, Defendant has filed a corresponding Statement of Material

Facts in Support of Motion, ECF No. [40] (“Defendant’s SMF”). Plaintiff filed a Response to

Defendant’s Motion, ECF No. [52] (“Response”), together with her Statement of Material Facts

in Response to Defendant’s Motion, ECF No. [51] (“Plaintiff’s SMF Response”). Finally,

Defendant filed a Reply in Support of its Motion, ECF No. [54] (“Reply”), and a Reply to

Plaintiff’s Statement of Additional Facts, ECF No. [53] (“Defendant’s SMF Reply”).

II. MATERIAL FACTS

Based on the parties’ respective statements of material facts, along with the evidence in the

record, the following facts are not genuinely in dispute unless otherwise noted.1

Plaintiff embarked on Defendant’s cruise ship, the Carnival Victory, on November 10,

2017. ECF No. [40] ¶¶ 1-2; ECF No. [51] ¶¶ 1-2. The cruise was a family vacation to celebrate

Plaintiff’s mother’s birthday. ECF No. [40-1] at 104:12-14. Plaintiff’s sister, Vicky Jones (“Ms.

Jones”), organized the family vacation and booked the entire group cruise on her credit card. Id.

at 104:15-105:3, 110:10-111:8. During the cruise booking process, Ms. Jones approached Plaintiff

and other members of the family with the types of rooms available. Id. at 109:22-110:9. Plaintiff

chose the room with the balcony. Id. at 110:3-17. Plaintiff paid Ms. Jones in cash for the balcony

1 In Defendant’s SMF Reply, Defendant argues that its SMF should be deemed admitted because Plaintiff

failed to respond to Defendant’s statement of facts as required by Local Rule 56.1(a)-(b). See S.D. Fla. L.R.

56.1. The Court recognizes that Plaintiff’s SMF Response fails to comply with numerous local rules: (1) it

does not clearly challenge any purportedly material facts asserted by Defendant, id. at 56.1(a)(2); (2) it does

not correspond with the order and paragraph numbering format used by Defendant, id. at 56.1(b)(2)(A);

and (3) it does not begin each paragraph with “disputed” or “undisputed,” id. at 56.1(b)(2)(B). While these

errors certainly warrant the Court striking all noncompliant briefs in their entirety, id. at 56.1(d), in the

interest of fairness and expediency, the Court sets forth the facts insofar as they are supported by the

evidence in the record.

room with the understanding that Ms. Jones would book the cruise for Plaintiff. Id. at 111:2-8,

112:4-7.

Plaintiff received her boarding pass from Ms. Jones when she arrived at the port to board

the cruise on November 10, 2017. Id. at 113:8-21. On November 12, 2017, while on the cruise

ship, Plaintiff fell and suffered personal injuries. Id. at 58:5-16; see also ECF No. [1] ¶ 27. Plaintiff

was still on the cruise ship when she decided that she wanted to file a lawsuit against Defendant

for her personal injuries. ECF No. [40-1] at 99:4-100:11. At that time, Plaintiff had a cell phone

with internet access. Id. at 89:6-23, 90:6-13. Plaintiff does not know how to operate a computer or

have an email account, id. at 88:20-89:5, 91:19-92:21, 120:7-13, but uses both Facebook and

Instagram applications on her cell phone, id. at 89:20-90:13, 115:20-116:7.

On November 29, 2017, approximately three weeks after her incident, Plaintiff’s counsel

sent Defendant a Letter of Notice, ECF No. [39-3] (“Notice Letter”), advising Defendant that their

“firm has been retained by [Plaintiff] to represent her in injuries resulting from [the subject] slip

and fall.” Id. at 2. In the Notice Letter, Plaintiff’s counsel also identified the date, time, and location

of the incident, along with the room that Plaintiff stayed in while onboard the cruise ship. Id. On

January 2, 2018, Defendant responded to the Notice Letter, ECF No. [39-4] (“Response to Notice

Letter”), and, in relevant part, advised counsel that “[a]ll rights in law, equity, and those contained

within the passenger ticket contact are expressly reserved; including the forum selection / venue

provision requiring all passenger lawsuits against [Defendant] to be filed in the United States

District Court for the Southern District of Florida in Miami, Florida.” Id. at 2.

On September 14, 2018, Defendant sent Plaintiff’s counsel a letter advising that it had the

opportunity to investigate Plaintiff’s claim and found that it was not liable for the alleged incident.

ECF No. [39-5] (“September 2018 Letter”). As with the Response to Notice Letter, Defendant also

stated that “[a]ll rights in law, equity, and those contained within the passenger ticket contract are

expressly reserved[.]” Id. at 3. Thereafter, on February 13, 2019, Defendant sent Plaintiff’s counsel

a letter, ECF No. [39-6] (“February 2019 Letter”), advising that the one-year contractual

limitations period on Plaintiff’s personal injury claim had expired. Id. at 2. Plaintiff initiated the

instant action on September 17, 2019, approximately seven months after receiving the February

2019 Letter. ECF No. [1].

Defendant now seeks summary judgment on the basis that Plaintiff’s personal injury claims

are time barred. Defendant maintains that the parties’ relationship is governed by the terms and

conditions of the Ticket Contract, ECF No. [39-1], which contains a one-year limitations period.

Id. at 12.2 Specifically, the first page of the Ticket Contract contains the following notice:

TICKET CONTRACT

IMPORTANT NOTICE TO GUESTS: THIS DOCUMENT IS A LEGALLY

BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINE TO, AND

ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND

CONDITIONS APPEARING BELOW.

NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO

CLAUSES 1, 4, AND 11 THROUGH 14, WHICH CONTAIN IMPORTANT

LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS

AGAINST CARNIVAL CRUISE LINE, THE VESSEL, THEIR AGENTS

AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION,

CHOICE OF LAW, ARBITRATION AND WAIVER OF JURY TRIAL FOR

CERTAIN CLAIMS.

IMPORTANT TERMS AND CONDITIONS OF CONTRACT -

READ CAREFULLY!

Id. at 2 (emphasis in original). Additionally, Clause 13(a) of the Ticket Contract, entitled

“Jurisdiction, Venue, Arbitration, Time Limits for Claims and Governing Law” provides:

2 The parties do not dispute that the Ticket Contract was available online. See ECF No. [41] at 10; see also

ECF No. [52] at 5.

13. JURISDICTION. VENUE, ARBITRATION. TIME LIMITS FOR

CLAIMS AND GOVERNING LAW

(a) Carnival shall not be liable for any claims whatsoever for personal injury, illness

or death of the Guest, unless full particulars in writing are given to Carnival within

185 days after the date of the injury, event, illness or death giving rise to the claim.

Suit to recover on any such claim shall not be maintainable unless filed within one

year after the date of the injury, event, illness or death, and unless served on

Carnival within 120 days after filing. Guest expressly waives all other potentially

applicable state or federal limitations periods.

Id. at 12 (emphasis in original).

Defendant maintains that Plaintiff electronically accepted the terms of the Ticket Contract.

ECF No. [39-2] (“Acceptance Report”). Specifically, the Acceptance Report shows that Plaintiff

accepted the terms of the Ticket Contract on September 24, 2017 for herself and her travel

companion, Ashley Jenkins. Id. at 2. Plaintiff disputes that she accepted the Ticket Contract, or

any other document from Defendant, prior to boarding the Carnival Victory. Specifically, Plaintiff

testified during her deposition that she did not personally book the cruise, ECF No. [40-1] at

110:10-111:1, received her boarding pass from Ms. Jones prior to boarding the cruise ship, id. at

113:18-21, did not own a computer or laptop at the time the cruise was booked, id. at 120:11-13,

and did not receive mail from Defendant at any time, id. at 120:14-18.

III. LEGAL STANDARD

A court may grant a motion for summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The parties may support their positions by citations to materials in the record,

including, among other things, depositions, documents, affidavits, or declarations. See Fed. R. Civ.

P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving

party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it

“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S.

at 247-48).

A court views the facts in the light most favorable to the non-moving party, draws “all

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility

determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga.,

934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Mia. Beach, 707 F.3d 1244,

1252 (11th Cir. 2013)); see also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e

accept [the non-movant’s] version of the facts as true and draw all reasonable inferences in the

light most favorable to him as the non-movant.”). “The mere existence of a scintilla of evidence

in support of the [non-moving party’s] position will be insufficient; there must be evidence on

which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. “If

more than one inference could be construed from the facts by a reasonable fact finder, and that

inference introduces a genuine issue of material fact, then the district court should not grant

summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,

1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,

1356 (11th Cir. 1986)).

Initially, the moving party bears the “responsibility of informing the . . . court of the basis

for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); see also Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant

satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some

metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819,

825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential

element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp., 477 U.S.

at 322). The non-moving party must produce evidence, going beyond the pleadings, and by its own

affidavits, or by depositions, answers to interrogatories, and admissions on file, designating

specific facts to suggest that a reasonable jury could find in the non-moving party’s favor. See

Shiver, 549 F.3d at 1343. Yet, even where a non-movant neglects to submit any alleged material

facts in dispute, a court must still be satisfied that the evidence in the record supports the

uncontroverted material facts proposed by the movant before granting summary judgment. See

Reese v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v. One Piece of

Real Prop. Located at 5800 S.W. 74th Ave., Mia., Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004)

(“One Piece of Real Prop.”). Indeed, even “where the parties agree on the basic facts, but disagree

about the factual inferences that should be drawn from those facts,” summary judgment may be

inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th

Cir. 1983).

In resolving the issues presented under Rule 56, “the court may not weigh conflicting

evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must

be denied.” Carlin Commc’n, Inc., 802 F.2d at 1356. Moreover, summary judgment is

inappropriate where the Court would be required to weigh conflicting renditions of material fact

or determine witness credibility. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th

Cir. 1993); see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is

not the court’s role to weigh conflicting evidence or to make credibility determinations; the non-

movant’s evidence is to be accepted for purposes of summary judgment.”); Strickland v. Norfolk

S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a

judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict.”

(quoting Anderson, 477 U.S. at 255)); see also Ramirez v. Nicholas, No. 13-60820-CIV, 2013 WL

5596114, at *4 (S.D. Fla. Oct. 11, 2013) (“The Court may not make the credibility determinations

needed to resolve this conflict; only the jury may do so.”).

IV. DISCUSSION

Defendant argues that summary judgment is warranted on all claims asserted in the

Complaint because Plaintiff failed to commence this action within one year after the alleged injury,

in contravention to the one-year limitations period set forth in the Ticket Contract. See generally

ECF No. [41]. The parties do not dispute that Plaintiff was injured on November 12, 2017 and

commenced this action on September 17, 2019. ECF No. [1] ¶¶ 7, 27; ECF No. [40] ¶ 15.

Courts will enforce a limitations period contained in a cruise ticket contract which limits

the time frame in which an injured passenger may file suit if the “contract provided the passenger

with reasonably adequate notice that the limit existed and formed part of the passenger contract.”

Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1566 (11th Cir. 1990). In the Eleventh Circuit, this

standard is applied using the “reasonable communicativeness” test.3 See Estate of Myhra v. Royal

Caribbean Cruises, Ltd., 695 F.3d 1233, 1244 (11th Cir. 2012) (applying the reasonable

communicativeness test to a cruise ticket contract); Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d

1279, 1281 (11th Cir. 2009) (applying same to guest hotel contract). The test requires a two-

pronged analysis of the physical characteristics of the clause in question and plaintiff’s opportunity

to review and understand the contract terms. Id. Thus, “[t]he reasonable communicativeness test

3 The parties do not dispute that the reasonable communicativeness test applies. See generally ECF Nos.

[41] & [52].

involves ‘an analysis of the overall circumstances . . . of the ticket itself, but also of any extrinsic

factors indicating the passenger’s ability to become meaningfully informed of the contractual

terms at stake.’” Lankford v. Carnival Corp., No. 12-24408-CIV, 2013 WL 12064497, at *4 (S.D.

Fla. June 18, 2013) (quoting Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835 (9th Cir. 2002)).

“Whether the notice to passengers was reasonably adequate is a question of law.” Nash, 901 F.2d

at 1567 (citations omitted).

Under the first prong, the Court examines the term’s physical characteristics, such as

typeface, conspicuousness, and clarity, to determine whether the term is reasonably presented to

the passenger. Myhra, 695 F.3d at 1245-46 (citing Wallis, 306 F.3d at 885-36 and Spataro v.

Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir. 1990)); see also Roberts v. Carnival, 824 F. App’x 825,

828 (11th Cir. 2020) (“The first factor is limited to a review of the contract itself.”).

Under the second prong, the Court examines whether the passenger “had the ability to

become meaningfully informed of the clause and to reject its terms.” Myhra, 695 F.3d at 1246.

This analysis includes the circumstances surrounding the passenger’s purchase of the ticket, the

passenger’s ability and incentive to become familiar with its terms, and any other notice that the

passenger received outside of the ticket. Id. (quoting Wallis, 306 F.3d at 836); see also Lankford,

2013 WL 12064497, at *4. Importantly, the second prong of the reasonably communicative test

does not require a court to determine whether the passenger actually read the contract term in

question; rather, the relevant inquiry is whether the passenger had reasonable opportunity to review

that term. See Roberts, 824 F. App’x 828 (“[W]hether Roberts read ‘the terms and conditions is

not relevant to the reasonable communicativeness inquiry.” (citation omitted)); Myhra, 695 F.3d

at 1246 n.42 (“We note that whether the [plaintiffs] chose to avail themselves of the notices and

to read the terms and conditions is not relevant to the reasonable communicativeness inquiry.”

(citation omitted)); Kirby v. NCL (Bah.) Ltd., No. 10-23723-CV, 2010 WL 11556551, at *1 (S.D.

Fla. Dec. 28, 2010) (“[I]t is well settled that the issue is not whether a passenger has read its ticket,

but instead whether the passenger had the opportunity to read its ticket.” (collecting cases)).

The second prong may be satisfied by constructive notice when a reasonable opportunity

to become meaningfully informed of the contract term is provided to the passenger’s agent who

books travel arrangements on the passenger’s behalf. McArthur v. Kerzner Int’l Bah. Ltd., 607 F.

App’x 845, 847-48 (11th Cir. 2015) (“[B]ecause the [plaintiffs’] trip involved travel arrangements

made by the travel agent, they are charged with constructive notice of the terms and conditions in

the contract the travel agent had with the [resort].”); Kirby, 2010 WL 11556551, at *1 (noting

“[c]ourts have even held that a travel agent’s possession of the ticket is sufficient to charge

passengers with constructive notice of the ticket provisions” (citing Gomez v. Royal Caribbean

Cruise Lines, 964 F. Supp. 47, 50-51 (D.P.R. 1997); Hicks v. Carnival Cruise Lines, Inc., 1995

A.M.C. 281, 288–89 (E.D. Pa. 1994); Shankles v. Costa Armatori, S.P.A., 722 F. 2d 861, 863-64

(1st Cir. 1983))).

A. Physical Characteristics of the One Year Limitations Period

Defendant first argues that the font, structure, and language of the Ticket Contract is

sufficiently clear under the first prong of the reasonably communicative test. ECF No. [41] at 5-8.

Plaintiff, however, maintains that the Ticket Contract does not have the physical characteristics

that give Plaintiff adequate notice of contractual limitations on her right to file suit and that its

contractual terms are ambiguous. ECF No. [52] at 4-8. The Court agrees with Defendant that the

one-year limitations period contained in the Ticket Contract is sufficiently clear and conspicuous

to meet the first prong of the reasonable communicative test.4

4 As an initial matter, the Court highlights that notwithstanding Plaintiff’s contention that the Ticket

Contract’s “clauses are full of ambiguous and opaque terms[,]” ECF No. [52] at 7, Plaintiff has failed to

Specifically, the first page of the Ticket Contract alerts the passenger in legible, bold, and

capitalized typeface:

IMPORTANT NOTICE TO GUESTS: THIS DOCUMENT IS A LEGALLY

BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINE TO, AND

ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND

CONDITIONS APPEARING BELOW.

ECF No. [39-1] at 2 (emphasis in original). Additionally, at the top of the first page, The Ticket

Contract further provides in legible, bold, and capitalized typeface:

NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO

CLAUSES 1, 4, AND 11 THROUGH 14, WHICH CONTAIN IMPORTANT

LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS

AGAINST CARNIVAL CRUISE LINE, THE VESSEL, THEIR AGENTS

AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION,

CHOICE OF LAW, ARBITRATION AND WAIVER OF JURY TRIAL FOR

CERTAIN CLAIMS.

Id. (emphasis in original). This language clearly and conspicuously notifies the passenger on the

first page of the Ticket Contract that it contains limitations on the passenger’s rights. See Myhra,

695 F.3d at 1246 (finding reasonable communicativeness where “an all-capital headline on the

very first page of a large travel packet . . . direct[ed] the [passengers’] attention to the terms and

conditions”); see also Nash, 901 F.2d at 1567-68 (finding reasonable communicativeness where

first page of contract directed passengers to specific paragraphs that contained limitations

provision).

offer any alternative interpretation of its terms. See Davis v. Valsamis, Inc., 752 F. App’x 688, 692 (11th

Cir. 2018) (“A contract provision is ambiguous if it ‘is susceptible to two or more reasonable interpretations

that can fairly be made.’” (quoting Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th

Cir. 1993))). Rather, Plaintiff maintains that the Notice clause on the first page of the Ticket Contract is not

clear because it does not “mention[] anything about limiting the time to sue[.]” ECF No. [52] at 5. The

Court is not persuaded. Indeed, as set forth herein, the Notice Clause specifically directs passengers to

“Clauses 1, 4, and 11 through 14, which contain important limitations on the rights of guests to assert claims

against [Defendant][.]” ECF No. [39-1] at 2 (emphasis omitted). The limitations period is set forth in Clause

13. Id. at 12.

The one-year limitations period appears in Clause 13, entitled “JURISDICTION,

VENUE, ARBITRATION, TIME LIMITS FOR CLAIMS AND GOVERNING LAW.” ECF

No. [39-1] at 12 (emphasis in original). Clause 13(a) limits the passenger’s right to sue, by stating

“Suit to recover on any such claim shall not be maintainable unless filed within one year after the

date of the injury, event, illness or death, and unless served on Carnival within 120 days after

filing.” Id. Clause 13(a) further provides that “Guest expressly waives all other potentially

applicable state or federal limitations periods.” Id.

Upon review of the Ticket Contract, the Court concludes that the language of Clause 13(a)

adequately communicates its contents to the lay passenger. Indeed, the language is straightforward

and legible, and is preceded by a bold, underlined, and capitalized heading. Further, the limitations

period contained in Clause 13(a) is not buried in the Ticket Contract. To the contrary, the first page

cautions the passenger that the document is “A LEGALLY BINDING CONTRACT” that should

be “READ CAREFULLY!” and directs the passenger to specifically review Clause 13, which

plainly states that the passenger must file any lawsuit “within one year[.]” Id. at 2, 12 (emphasis

in original). These characteristics are sufficient to satisfy the first prong of the reasonable

communicative test. See Krenkel, 579 F.3d at 1281-82 (holding that a contractual provision

satisfied the reasonable communicativeness test where it was “not hidden or ambiguous,” and

where it was set apart in a separate paragraph, and contained plain language); Myhra, 695 F.3d at

1245-46 (finding lengthy booklet with “very small, but legible, type” which on the first page

specifically directed passengers to terms and conditions on the back of brochure satisfied provided

reasonably adequate notice); Nash, 901 F.2d at 1567-68 (finding multi-page cruise contract where

first page specifically directed passenger to certain terms and conditions and where each numbered

paragraph of contract is typed in the same size letter, style and color was sufficiently

communicative); Calixterio v. Carnival Corp., No. 15-22210-CIV, 2016 WL 3973791, at *3 (S.D.

Fla. Jan. 7, 2016) (finding the ticket contract’s physical characteristics, including the “bolded,

capitalized heading at the top of the ticket contract directing the passenger to specific terms and

conditions, along with the legible and consistent font of the rest of the contract, provides

reasonably adequate notice to satisfy the first prong of the test.”).

B. Opportunity to be Meaningfully Informed of the Limitations Term

Having found that the Ticket Contract satisfies the first prong of the reasonable

communicativeness test, the Court next considers whether Plaintiff had a meaningful opportunity

to be informed of the one-year limitations period.

Defendant argues that Plaintiff is bound by the one-year limitations period because she had

the opportunity, both before and after the cruise, to review the terms of the Ticket Contract. ECF

No. 8-10. Specifically, Defendant maintains that “Plaintiff electronically accepted the ticket’s

terms in September 2017, was in physical possession[] of the ticket when she boarded in November

2017, knew she wanted to file suit when onboard, and had internet access to view the electronic

version of the ticket at all times until the deadline passed in November 2018.” Id. at 8. Defendant

further sets forth that it “twice told Plaintiff’s counsel (in January and September 2018) that

[Defendant] was reserving its rights under the Ticket Contract before it expired.” Id. at 8-9.

In response, Plaintiff argues that genuine issues of material fact remain regarding whether

Plaintiff was given adequate, prior notice of the limitations period contained in the Ticket

Contract. ECF No. [52] at 9. Specifically, according to Plaintiff, the following questions preclude

summary judgment in Defendant’s favor and must be resolved by a trier of fact: (1) “Did Plaintiff

electronically sign the Ticket Contract?” (2) “Why is Defendant’s attached Ticket Contract

physically unsigned and undated?” (3) “Does Defendant’s report of guests who allegedly accepted

the Ticket Contract authentically show guests [who have] accepted the Ticket Contract?” (4) “Did

Defendant give Plaintiff a meaningful opportunity to review the Ticket Contract?” (5) “Does

Plaintiff have a duty to use her phone while in the middle of a cruise to read a Ticket Contract?”

(6) “Was Plaintiff given adequate, meaningful notice of the Ticket Contract even though she never

communicated with anyone about it or given any documents relating to this limitation until after

her cruise was already over?” and (7) “Do the physical characteristics of the Ticket Contract

adequately give notice to Plaintiff?” ECF No. [52] at 9.

Additionally, Plaintiff maintains that she cannot be bound by the one-year limitations

period because “she did not book the ticket and was not given her boarding pass until she was

already at the port to embark.” Id. at 10. Plaintiff further explains that “she does not know how to

use a computer and [does not] own one, so she could not have electronically signed any Ticket

Contract or reviewed one through a computer.” Id. Thus, according to Plaintiff, “the only way she

could have been on notice [of the one-year limitations period] is if Defendant physically handed

the Ticket Contract to her or mailed it to her.” Id.

Viewing the facts in the light most favorable to Plaintiff, the record conclusively

establishes that Plaintiff had the opportunity to be informed of the one-year limitations period in

the Ticket Contract. As an initial matter, the Acceptance Report reveals that Plaintiff electronically

accepted the terms of the Ticket Contract on September 24, 2017 at 6:55 p.m.—approximately six

(6) weeks before boarding the subject cruise ship. ECF No. [39-2] at 2. Defendant has provided

the sworn declaration of Monica Borcegue, Defendant’s corporate representative, attesting to the

Acceptance Report’s authenticity and explaining how it electronically details the date and time in

which passengers, or someone acting on their behalf, accepts the terms of the Ticket Contract. ECF

No. [39] ¶¶ 7-9. Defendant has also offered evidence that Plaintiff could not have boarded the

subject cruise ship without accepting the terms and conditions of the Ticket Contract. Id. ¶ 6; see

also ECF No. [39-1] at 2.

While Plaintiff urges the Court to disregard the Acceptance Report on the basis that it is

not authentic, the Court is not persuaded that Plaintiff has raised a genuine dispute of material fact

regarding her acceptance of the Ticket Contract. Notably, even accepting Plaintiff’s assertion that

she was not involved in the booking process and does not know how to use a computer, Plaintiff

does not dispute that Ms. Jones was Plaintiff’s agent for purposes of booking her ticket. Nor does

she challenge whether Ms. Jones accepted the Ticket Contract on her behalf.5 Indeed, the record

reflects that Plaintiff authorized Ms. Jones to book the cruise ticket, ECF No. [40-1] at 104:15-

105:3, 110:10-111:8, communicated with Ms. Jones regarding the travel arrangements, id. at

110:3-17, received relevant documents from Ms. Jones, id. at 113:8-21, and paid Ms. Jones for the

trip, id. at 111:2-8, 112:4-7. Thus, to the extent Ms. Jones affirmatively accepted the terms of the

Ticket Contract on Plaintiff’s behalf, Plaintiff is charged with constructive notice of the Ticket

Contract’s provisions, including the limitations period found in Clause 13.6 See Calixterio, 2016

WL 3973791, at *4 (“The fact that a ticket may have been in the possession of a friend or relative

is irrelevant so long as the plaintiff had an opportunity to read the terms and conditions of the

contract.” (citation omitted) (collecting cases)); Kirby, 2010 WL 11556551, at *1 (finding

limitations period enforceable when third party made travel arrangements on plaintiff’s behalf,

5 As stated above, the second prong of the reasonable communicativeness test “may be satisfied by

constructive notice when a reasonable opportunity to become meaningfully informed of the contract term

is provided to the passenger’s agent who books travel arrangements on the passenger’s behalf.” Baer v.

Silversea Cruises Ltd., No. 17-CV-60208, 2018 WL 707682, at *5 (S.D. Fla. Feb. 5, 2018), aff’d, 752 F.

App’x 861 (11th Cir. 2018).

6 To the extent Plaintiff contends that she must physically sign and date the Ticket Contract to be bound by

it, ECF No. [52] at 2, 9, the Court is unaware of, and Plaintiff has failed to cite to, any authority suggesting

that a cruise passenger must sign a ticket contract to be bound by its terms and conditions.

despite that plaintiff never received or reviewed the ticket contract and her internet was not

functioning); Angel v. Royal Caribbean Cruises, Ltd., No. 02-20409-CIV, 2002 WL 31553524, at

*3 (S.D. Fla. Oct. 22, 2002) (finding one-year limitations period enforceable because plaintiff had

reasonable notice of the contracts conditions even when plaintiff did not pay for his own ticket and

plaintiff did not read its terms).

Moreover, even if the Court were to assume that Plaintiff did not have the opportunity to

review the terms of the Ticket Contract before boarding the subject cruise, Plaintiff had up to one

year after the subject incident to apprise herself of its terms and conditions. This is especially true

given Plaintiff’s testimony that she decided to sue Defendant for her personal injuries while she

was still on the cruise ship. ECF No. [40-1] at 99:4-100:11. See Racca v. Celebrity Cruises, Inc.,

376 F. App’x 929, 931 (11th Cir. 2010) (enforcing ticket contract terms and noting that “after

[plaintiff’s] injury, or certainly after one of his surgeries, it is not unreasonable to expect [plaintiff]

to read the three-page contract which the face of the brochure directed him to.”); Nash, 901 F.2d

at 1568 (“Although a passenger may almost never read all of the fine print on the ticket upon

purchase, or as pleasure reading in the berth the first night at sea, the same passenger might very

well be expected to consult the multifarious terms and conditions of the ticket/contract in the event

of an accident resulting in a loss or injury.” (quoting Shankles, 722 F.2d at 865)); Angel v. Royal

Caribbean Cruises, Ltd., 2002 WL 31553524, at *4 (same).

Lastly, the Court must emphasize that despite retaining counsel as early as November 29,

2017, ECF No. [39-3], Plaintiff waited nearly two years after the subject incident to commence

this lawsuit, ECF No. [1]. Plaintiff was advised via counsel on two separate occasions that

Defendant was reserving all rights under the Ticket Contract. ECF No. [39-4]; ECF No. [39-5].

Certainly, Defendant’s correspondence gave Plaintiff a reasonable opportunity to become

meaningfully informed of the Ticket Contract before the expiration of the one-year limitations

period. See Racca, 376 F. App’x at 931 (noting that “even though [plaintiff] consulted an attorney

by July 2007, [plaintiff] waited another nine months to commence this lawsuit.”).

Without citing to any authority, Plaintiff maintains that the letters sent to her counsel cannot

qualify as proper notice because “Plaintiff’s due process rights afford her the opportunity to be

given proper notice before embarking on the ship.” ECF No. [52] at 11. The Court is not persuaded.

First, as set forth above, Plaintiff need not have a meaningful opportunity to review the Ticket

Contract prior to embarkation, so long as Plaintiff had the opportunity to review its terms and

conditions after her injury. See, e.g., Racca, 376 F. App’x at 931; Nash, 901 F.2d at 1568.

Moreover, “[i]t is axiomatic that the Due Process clause protects against deprivations of due

process by state actors.” Rothman v. Chase Home Fin., LLC, No. 05-20793-CIV, 2005 WL

8155926, at *2 (S.D. Fla. July 29, 2005) (citing Langston v. ACT, 890 F.2d 380, 384 (11th Cir.

1989). At no point has Plaintiff alleged that Defendant is a state actor, or that it was acting in

conjunction with a state actor. Thus, Plaintiff’s due process challenge fails as a matter of law.

Based on the foregoing, the Court concludes that Plaintiff had the opportunity to become

meaningfully informed of the one-year limitations period set forth in the Ticket Contract before

the deadline expired. As such, Plaintiff’s claims are barred by the applicable statute of limitations.

V. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. The Motion, ECF No. [41], is GRANTED.

2. Pursuant to Federal Rule of Civil Procedure 58, Final Judgment will be entered

by separate order.

Case No. 19-cv-23885-BLOOM/Louis

3. To the extent not otherwise disposed of, all pending motions are DENIED AS

MOOT, any scheduled hearings are CANCELED, and all deadlines are

TERMINATED.

4. The Clerk of Court is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on March 21, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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