Hollowell v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-21399-BLOOM/Otazo-Reyes

RETA HOLLOWELL,

Plaintiff,

v.

CARNIVAL CORPORATION,

Defendant.

____________________________/

ORDER ON MOTION TO DISMISS COUNT III OF PLAINTIFF’S COMPLAINT

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

or “Carnival”) Motion to Dismiss Count III of Plaintiff’s Complaint, ECF No. [16] (“Motion”).

Plaintiff Reta Hollowell (“Plaintiff” or “Hollowell”) filed a Response, ECF No. [19], to which

Defendant filed a Reply, ECF No. [20]. The Court has carefully reviewed the Motion, the Response

and Reply, the record in this case, the applicable law, and is otherwise fully advised. For the

reasons that follow, the Motion is granted.

I. BACKGROUND

This case arises as a result of alleged injuries sustained by Hollowell on board Carnival’s

ship, the Carnival Vista. In the Complaint, Plaintiff alleges that she is elderly and suffers from

mobility issues and was using a scooter at the time of her cruise on the Vista. ECF No. [1] ¶ 12.

While she was a passenger on the Vista, Plaintiff was returning to the ship via tender and, in the

process of re-embarking the ship, Carnival’s employees told her to stay on the scooter. Id. ¶ 13.

The employees tried to lift the scooter with her on it, and dropped the scooter, causing her to fall

off the scooter and injure herself. Id. ¶¶ 13-14.

As a result, Plaintiff asserts three claims against Carnival, including negligence (Count I);

failure to warn (Count II); and violation of Title III of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101, et seq. (Count III). In the Motion, Carnival seeks dismissal of the

ADA claim asserted in Count III pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,

and Rule 12(b)(1) for lack of standing.

II. LEGAL STANDARD

A. Failure to State a Claim

Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a

complaint “does not need detailed factual allegations,” it must provide “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required

to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which

requests dismissal for failure to state a claim upon which relief can be granted.

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor

of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.

Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and

courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”

Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Off.,

449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in

the complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the

unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605

F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

B. Lack of Standing

“Standing for Article III purposes requires a plaintiff to provide evidence of an injury in

fact, causation and redress[a]bility.” Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir.

2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L.Ed.2d

351 (1992)). “Because standing is jurisdictional, a dismissal for lack of standing has the same

effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).” Cone

Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203 n.42 (11th Cir. 1991). “If at any point in the

litigation the plaintiff ceases to meet all three requirements for constitutional standing, the case no

longer presents a live case or controversy, and the federal court must dismiss the case for lack of

subject matter jurisdiction.” Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296,

1302 (11th Cir. 2011) (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1277

(11th Cir. 2006)).

A Rule 12(b)(1) motion challenges the district court’s subject matter jurisdiction and takes

one of two forms: a “facial attack” or a “factual attack.” “A ‘facial attack’ on the complaint

‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of

subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes

of the motion.’” McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251

(11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “A ‘factual

attack,’ on the other hand, challenges the existence of subject matter jurisdiction based on matters

outside the pleadings.” Kuhlman v. United States, 822 F. Supp. 2d 1255, 1256-57 (M.D. Fla. 2011)

(citing Lawrence, 919 F.2d at 1529); see Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys.,

Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (“By contrast, a factual attack on a complaint challenges

the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as

affidavits or testimony.”).

III. DISCUSSION

A. The Complaint Fails to State an ADA Claim

Carnival argues that Plaintiff’s ADA claim should be dismissed because the Complaint

fails to allege any facts showing that she was barred from enjoying any of the services, facilities,

privileges, or accommodations of the Vista. Carnival argues further that the Complaint fails to state

a factual basis showing some tangible or intangible barrier that barred her from the full and equal

enjoyment of the Vista. Plaintiff responds that the allegations contained in the Complaint are

sufficient.

Title III of the ADA states that, as a general rule:

[n]o individual shall be discriminated against on the basis of disability in the full

and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a).

In order to state a claim under Title III of the ADA, a plaintiff must allege that (1) she is a

qualified individual with a disability; (2) she was discriminated against in the full and equal

enjoyment of the goods, services, facilities, privileges, advantages or accommodations of a place

of public accommodation; and (3) the discrimination was on the basis of her disability. Louie v.

Nat’l Football League, 185 F. Supp. 2d 1306, 1308 (S.D. Fla. 2002). Importantly, “[t]he

prohibition on discrimination is not limited to tangible barriers that disabled persons face but can

extend to intangible barriers as well.” Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752, 754

(11th Cir. 2018) (citing Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002)).

At the outset, the Court notes that Carnival does not appear to dispute that Plaintiff is a

qualified individual with a disability or that the ADA applies to the Vista. Carnival argues that the

allegations are insufficient to satisfy the second element of an ADA claim – that Plaintiff was

discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages or accommodations on the Vista.1

1 Under the ADA,

discrimination includes—

(i) the imposition or application of eligibility criteria that screen out or tend to screen out

an individual with a disability or any class of individuals with disabilities from fully and

equally enjoying any goods, services, facilities, privileges, advantages, or

accommodations, unless such criteria can be shown to be necessary for the provision of the

goods, services, facilities, privileges, advantages, or accommodations being offered;

(ii) a failure to make reasonable modifications in policies, practices, or procedures, when

such modifications are necessary to afford such goods, services, facilities, privileges,

advantages, or accommodations to individuals with disabilities, unless the entity can

demonstrate that making such modifications would fundamentally alter the nature of such

goods, services, facilities, privileges, advantages, or accommodations;

(iii) a failure to take such steps as may be necessary to ensure that no individual with a

disability is excluded, denied services, segregated or otherwise treated differently than

other individuals because of the absence of auxiliary aids and services, unless the entity

can demonstrate that taking such steps would fundamentally alter the nature of the good,

service, facility, privilege, advantage, or accommodation being offered or would result in

an undue burden;

(iv) a failure to remove architectural barriers, and communication barriers that are

structural in nature, in existing facilities, and transportation barriers in existing vehicles

and rail passenger cars used by an establishment for transporting individuals (not including

barriers that can only be removed through the retrofitting of vehicles or rail passenger cars

In the Complaint, Plaintiff alleges that:

[o]n or about March 8, 2022, Plaintiff had returned to the ship via tender and was

in the process of re-embarking the ship. As Plaintiff attempted to step off of her

scoter so that it could be put aboard the ship by Defendant’s employees,

Defendant’s employees told her to remain on the scooter. Thereafter, Defendant’s

employees attempted to lift the scooter with Plaintiff still in it, took a few steps

toward the ship, and dropped the scooter with Plaintiff in it. This caused a hard

impact, causing Plaintiff to fall off the scooter.

ECF No. [1] ¶ 13. In addition, paragraph 37 states, in pertinent part, that:

Defendant has violated Title III of the ADA by, inter alia, failing to operate its

ships on a nondiscriminatory basis; failing to ensure that individuals, including

Plaintiff, with mobility disabilities who must make use of scooters have

nondiscriminatory, safe access to Defendant’s ships, including the CARNIVAL

VISTA, and the ability to safely exit and enter the ship by way of Defendant’s

embarkation area. Plaintiff was denied public accommodation by Defendant due to

her disability.

Id. ¶ 37. Though not clear from the Complaint, Plaintiff clarifies in her Response to the Motion

that her claim is based on the existence of a barrier – “but for the existence of a ‘barrier’ to her re-

boarding the ship on her own in her scooter, Defendant’s employees would not have had to ‘lift

the scooter’ in order to allow Plaintiff access from the embarkation area and back onto the ship.”

ECF No. [19] at 5. However, the Complaint notably does not allege that Plaintiff was prevented

from re-embarking the ship altogether, nor does it contain any factual allegations regarding what

the actual “barrier” to re-embarking is in this case. Rather, the facts alleged in the Complaint relate

to the allegedly negligent manner in which Plaintiff was re-embarked. As such, Defendant is left

by the installation of a hydraulic or other lift), where such removal is readily achievable;

and

(v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not

readily achievable, a failure to make such goods, services, facilities, privileges, advantages,

or accommodations available through alternative methods if such methods are readily

achievable.

42 U.S.C. § 12182(b)(2)(A).

to guess whether Plaintiff’s claim involves a policy of re-embarkation from a tender that allegedly

violates the ADA, or perhaps an actual barrier, such as a gangway or ramp with an improper degree

of incline.2

As such, the Complaint does not sufficiently allege a claim for violation of the ADA.

B. Standing

Carnival asserts a facial attack, arguing that Hollowell does not have standing to seek

injunctive relief under the ADA because the Complaint fails to allege that she has suffered an

injury-in-fact as a result of the alleged barriers, and does not establish a concrete threat of future

injury. Plaintiff responds that the allegations in the Complaint are sufficient to state an injury in

fact and to satisfy the specific requirements for standing to seek injunctive relief.

Because the Court concludes that Plaintiff does not sufficiently allege a claim for violation

of the ADA in the Complaint, the Court agrees that Plaintiff fails to sufficiently allege an injury-

in-fact, and therefore, standing. As such, the Court does not reach Carnival’s last argument that

the Complaint does not establish a concrete threat of future injury.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [16], is

GRANTED, and Count III of the Complaint is dismissed without prejudice. To the extent that

Plaintiff can allege additional facts in good faith, Plaintiff may file an amended complaint no later

than July 27, 2022.

2 A plaintiff may also assert a reasonable modification claim, in which the plaintiff alleges that a defendant

failed to reasonably modify its policies, practices or procedures, but in such a case, a plaintiff must also

allege that she actually requested a modification.” See Larsen v. Carnival Corp., Inc., 242 F. Supp. 2d 1333,

1343 (S.D. Fla. 2003). There are no allegations in the Complaint that would support a reasonable

modification claim here.

Case No. 22-cv-21399-BLOOM/Otazo-Reyes

DONE AND ORDERED in Chambers at Miami, Florida, on July 20, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

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