WALDSTEIN v. Virgin Cruises Intermediate Limited

United States District Court

for the

Southern District of Florida

Randi Waldstein, Plaintiff, )

)

v. )

Civil Action No. 23-21107-Civ-Scola

)

Virgin Cruises Intermediate )

Limited, 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

Randi Waldstein when she slipped and fell while a passenger aboard a ship

operated by Defendant Virgin Cruises Intermediate Limited. (Compl., ECF No. 1.)

In her complaint, Waldstein asserts one count of negligence against Virgin

Cruises Intermediate Limited. (Id. ¶¶ 9-18.) Within the one count of negligence,

Waldstein alleges twelve ways by which Virgin Cruises breached four duties to

Waldstein. (Id. ¶¶ 13-14.) Many of these “breaches” raise distinct theories of

liability, some of which do not appear to be based on duties that are even alleged

or cognizable. (E.g., Compl. at ¶ 14.j. (“Failing to place the pool chairs and

lounges in a manner that would minimize or mitigate any dangers from

passengers falling in the area.”)) Others are redundant. (Compare, e.g., id. at ¶

14.c. (“Failing to remove the substance from the floor . . . .”) with id. at ¶ 14.h.

(“Failing to keep the area free from liquid and other hazards.”))

“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.

Waldstein attempts to fit multiple distinct theories of liability into the

single “negligence” count. (Compl. at ¶¶ 10-17.) Each distinct theory, however,

is a separate cause of action 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).

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

pleading. Waldstein may file an amended complaint by October 13, 2023,

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

10(b), and the Iqbal/Twombly standard. Furthermore, Waldstein is admonished

not to include redundant claims or counts in her amended pleading.

Waldstein 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)).

In light of the above, the Defendant’s motion to dismiss the Plaintiffs

complaint is denied without prejudice (ECF No. 14).

Done and ordered in Miami, Florida on October 3, 2023.

foo N. fe Jr.

United States District Judge