# Miles v. Carnival Corporation

> District Court, S.D. Florida · February 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10805117

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** February 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10805117

## How later opinions describe it (automated extraction)

- explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 24-cv-22767-BLOOM/Elfenbein

ANGELA MILES,

Plaintiff,

v.

CARNIVAL CORPORATION d/b/a
CARNIVAL CRUISE LINES

Defendant.
_________________________/

ORDER ON MOTION TO DISMISS PLAINTIFF’S COMPLAINT
THIS CAUSE is before the Court upon Defendant Carnival Corporation’s (“Defendant”)
Motion to Dismiss Plaintiff’s Complaint, ECF No. [6] (“Motion”). Plaintiff Angela Miles
(“Plaintiff”) filed a Response in Opposition (“Response”), ECF No. [24], to which Defendant filed
a Reply, ECF No. [27]. The Court has reviewed the Motion, the Response, the Reply, 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
On July 19, 2024, Plaintiff filed a Complaint against Defendant asserting two claims:
Negligence (Count I) and Negligent Failure to Warn (Count II). ECF No. [1] at 4, 7. Plaintiff
alleges that on July 21, 2023, she was a passenger aboard the Carnival Glory (“Vessel”), “owned
and/or operated” by Defendant. Id. ¶¶ 3, 6. The Vessel had been “custom built to specifications
and designs which were by or under the supervision and participation of [Defendant].” Id. ¶ 7. As
“Plaintiff was attempting to reboard the Vessel from the Cozumel port via the gangway[,] Plaintiff
placed her left foot on the gangway which caused it to raise up and trap Plaintiff’s right foot under
the ramp. This caused Plaintiff to stumble and fall onto her right arm and left hand, which had
been extended in an attempt to break her fall.” Id. ¶ 6. Plaintiff alleges that Defendant “has been
responsible for ensuring that the gangways used for embarkation and disembarkation were safe for
passengers. This includes controlling how many individuals are allowed on the gangway at a time,
connecting and disconnecting the gangway from the ship to port, and maintaining the gangway in
good working condition.” Id. ¶ 11. Plaintiff alleges that “Defendant failed to properly operate the
gangway on the Incident Date, by failing to secure it in a manner that would not lead to injury.”
Id. ¶ 12. Defendant “knew or should have known that operating the gangway without properly
securing it would create a dangerous condition for pedestrians embarking or disembarking the
Vessel” and that Defendant “has actual or constructive knowledge of the dangerous condition
and/or had constructive knowledge of the dangerous condition because Carnival employees were

stationed at the embarkment point to facilitate passengers entering or leaving the Vessel safely.”
Id. ¶¶ 13-14.
Defendant seeks to dismiss the Complaint and argues that the Negligence claim in Count I
improperly commingles liability theories and neither Count fails to sufficiently state a cause of
action. Plaintiff responds that the Complaint is not a shotgun pleading and the Counts sufficiently
allege causes of action.
II. LEGAL STANDARD
A. Failure to State a Claim
A pleading must 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”).
Additionally, 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). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. If
the allegations satisfy the elements of the claims asserted, a defendant’s motion to dismiss must
be denied. See id. at 556.
When reviewing a motion to dismiss, 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. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); 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)
(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving
party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.
B. Shotgun Pleading
“A complaint that fails to articulate claims with sufficient clarity to allow the defendant to
frame a responsive pleading [violates Rule 8(a)(2) and] constitutes a ‘shotgun pleading.’”
Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x. 274, 277 (11th Cir. 2008) (quoting Byrne
v. Nezhat, 261 F.3d 1075, 1128-29 (11th Cir. 2001)). Such unclear pleadings “exact an intolerable
toll on the trial court’s docket, lead to unnecessary and unchanneled discovery, and impose

unwarranted expense on the litigants, the court and the court’s parajudicial personnel and
resources.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356 (11th Cir. 2018) (quoting Cramer
v. Fla., 117 F.3d 1258, 1263 (11th Cir. 1997)). The negative externalities also extend beyond a
single case. “[J]ustice is delayed for the litigants who are ‘standing in line,’ waiting for their cases
to be heard.” Id. Accordingly, shotgun pleadings are condemned by the Eleventh Circuit, which
has specifically instructed district courts to dismiss shotgun pleadings as “fatally defective.” B.L.E.
v. Georgia, 335 F. App’x. 962, 963 (11th Cir. 2009) (citations omitted).
The Eleventh Circuit has identified four types of shotgun pleadings, the “unifying
characteristic” of which being that all shotgun pleadings “fail . . . to give the defendants adequate
notice of the claims against them and the grounds upon which each claim rests.” Weiland v. Palm
Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1323 (11th Cir. 2015). The first and “most common
type” of shotgun pleading “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 type of shotgun

pleading is the complaint that is “guilty of the venial sin of being replete with conclusory, vague,
and immaterial facts not obviously connected to any particular cause of action.” Id. at 1322. Third
is the pleading “that commits the sin of not separating into a different count each cause of action
or claim for relief.” Id. at 1323. Fourth is the pleading that asserts “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.
C. General Maritime Law
In cases involving alleged torts “committed aboard a ship sailing in navigable waters,” the
applicable substantive law is general maritime law, the rules of which are developed by the federal

courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)); see also Everett v. Carnival
Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Because this is a maritime tort, federal
admiralty law should control.”). In the absence of well-developed maritime law, courts may
supplement the maritime law with general common law and state law principles. See Smolnikar v.
Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011). “In analyzing a
maritime tort case, [courts] rely on general principles of negligence law.” Chaparro, 693 F.3d at
1336 (quoting Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)).
III. DISCUSSION
A. Count I
Plaintiff’s Count of Negligence alleges a series of theories of negligence liability under
the single count. ECF No. [1] ¶¶ 6-14;15-24. Plaintiff argues Defendant breached its duty to
Plaintiff to maintain the ship in a safe condition through “one or more” of the following theories
of liability:

[(1)] By negligently and carelessly failing to use reasonable care;
[(2)] By negligently and carelessly failing to require, as part of the design of its ship
which it knew would include pedestrians travel paths that were safe for use by
pedestrians;
[(3)] By negligently and carelessly failing to create appropriate protocols and
procedures to ensure that all pedestrian travel paths were safe for use by
pedestrians;
[(4)] By negligently and carelessly failing to enforce appropriate protocols and
procedures to ensure that all pedestrian travel paths were safe for use by
pedestrians.

Id. ¶ 22. Plaintiff also alleges Defendant had a duty to provide Plaintiff “with a safe ship,
reasonably fit for its intended purpose, that did not pose her any unreasonable risk of harm,” a duty
which “include[d] the duty to design and maintain the ship[.]” Id. ¶ 17. As Defendant correctly
points out in its Motion, Plaintiff “improperly combines multiple theories of liability into her
Negligence claim (Count I),” thereby constituting a shotgun pleading. ECF No. [6] at 3. Within
Count I, Plaintiff “includes allegations indicative of negligent design and negligent maintenance
claims,” which are “distinct negligence claims and cannot be nestled within a general negligence
claim.” ECF No. [6] at 3.
The Complaint is a shotgun pleading, condemned by the Eleventh Circuit, and “commits
the sin of not separating into a different count each cause of action or claim for relief.” Weiland v.
Palm Beach Cty. Sheriff's Off., 792 F.3d 1313, 1322-23 (11th Cir. 2015). Plaintiffs may not “cram
multiple, distinct theories of liability into one claim” because each theory “is a separate cause of
action that must be asserted independently and with corresponding supporting factual allegations.”
Ortiz v. Carnival Corp., No. 20-cv-24838, 2020 WL 6945958, at *1 (S.D. Fla. Nov. 25, 2020). To
the extent Plaintiff seeks to bring claims against Defendant based on negligent failure to maintain
and negligent design, these claims “are distinct negligence claims and cannot be ‘nestled within a
general negligence claim.’” Pride v. Carnival Corp., No. 23-cv-22121, 2023 WL 6907813, at *4
(S.D. Fla. Oct. 19, 2023) (quoting Anders v. Carnival Corp., No. 23-21367, 2023 WL 4252426, at

*4 (S.D. Fla. June 29, 2023) (dismissing complaint as shotgun pleading).
Plaintiff appears to concede that the Complaint constitutes a shotgun pleading by stating
that “Defendant’s own motion demonstrates that they are able to reasonably identify any distinct
causes of action that may have been combined in the complaint.” ECF No. [24] at 3 (citing Thomas
v. Tyco Int’l Mgmt., 262 F. Supp. 3d 1328, 1334 (S.D. Fla. 2017)). Thomas is distinguishable.
There, the only flaw alleged in the complaint was that “some of Plaintiff’s counts incorporate[d]
the allegations of other counts.” 262 F. Supp. 3d at 1341. The district court rejected the defendant’s
argument that the complaint constituted a shotgun pleading because “[t]he Court and Defendant
are able to ascertain exactly what facts form the basis of each of Plaintiff’s claims.” 262 F. Supp.

3d at 1341. The same is not true here. Additionally, Plaintiff’s contention that Defendant’s ability
to discern the various causes of action in Count I does not overcome the Complaint’s fatal flaw
that that negligent design and negligent maintenance claims have different elements and therefore
must be pled separately. See Finch v. Carnival Corp., 701 F. Supp. 3d 1272, 1283 (S.D. Fla. 2023)
(dismissing complaint as a shotgun pleading despite Plaintiff’s argument that “Defendant [is able]
to discern each cause of action.”); Anders v. Carnival Corp., No. 23-cv-21367, 2023 WL 4252426,
at *4 (same).
Similarly, Defendant correctly points out that Plaintiff’s allegations in Count I “conflate
direct negligent and vicarious liability” which constitutes “an improper pleading practice.” ECF
No. [6] at 4. As Defendant notes, by simultaneously alleging that Defendant “had undertaken a
duty” by acting “by and through its agents, apparent agents, employees, servants, representatives,
and contractors,” and “as a common carrier,” the Complaint is unclear as to whether Count I is
being brought under a theory of direct or vicarious liability. ECF No. [1] at 4. Plaintiff apparently
concedes this point in her Response by failing to respond to the argument other than by stating she

“has already notified Defendant of her intent to amend the complaint to address the alleged
deficiencies by separately delineating any claims for direct and vicarious liability.” ECF No. [24]
at 3. Although Plaintiff is permitted to bring claims under a direct negligence theory or vicarious
liability, each claim must be pled separately so as not to constitute a shotgun pleading. Smith v.
Carnival Corp. & PLC, No. 22-cv-22853, 2022 WL 16791783, at *3 (S.D. Fla. Nov. 8, 2022)
(dismissing complaint as shotgun pleading where theories of direct and vicarious liability were
brought under a single negligence count).
B. Count II
Regarding Count II, the parties primarily disagree on whether the Complaint adequately

pleads the notice element of the failure to warn claim. This disagreement partially stems from
confusion over whether Count II is premised on a theory of direct or vicarious liability since the
notice element of a failure to warn claim differs depending on whether Plaintiff is alleging that
Defendant is directly or vicariously liable. Yusko v. NCL (Bahamas), Ltd., 4 F.4th 1164, 1167 (11th
Cir. 2021). This confusion demonstrates the necessity of dismissing Count II as a shotgun pleading.
Gharfeh v. Carnival Corp., No. 17-cv-20499, 2018 WL 501270 at *6 (S.D. Fla. Jan. 22, 2018)
(dismissing as shotgun pleading where complaint “need[ed] to be clarified” because complaint
suggested it contained only a claim for vicarious liability but also included allegations of direct
negligence); Flaherty v. Royal Caribbean Cruises, Ltd., No. 15-cv-22295, 2015 WL 8227674, at
*3 n.3 (S.D. Fla. Dec. 7, 2015) (dismissing with instructions to separate distinct failure to warn
claims because it “would promote clarity for the Parties and the Court”) .
In Count II, Plaintiff alleges that Defendant owed a duty “to its passengers to warn of
dangers known to [Defendant] where [Defendant] invites or reasonably should expect passengers
to go, including pedestrian walkways or paths across the ship.” ECF No. [1] ¶ 28. Plaintiff asserts

that Defendant had a duty to warn Plaintiff “to be cautious stepping onto the platform” of the
gangway, since “[a] reasonable person who was not familiar with embarking or disembarking from
gangways, would not appreciate the dangers posed by the gangway and its ability to harm
passengers, in the event that it shifted out of place from normal pedestrian foot traffic.” Id. ¶¶ 28,
29.
To prevail on a negligence claim, a plaintiff must show that “(1) the defendant had a duty
to protect the plaintiff from a particular injury, (2) the defendant breached that duty, (3) the breach
actually and proximately caused the plaintiff’s injury, and (4) the plaintiff suffered actual harm.”
Green v. Carnival Corp., 614 F. Supp. 3d 1257, 1263 (S.D. Fla. 2022) (quoting Guevara v. NCL

(Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019)). “[I]t is clearly established that cruise lines
owe their passengers a duty to warn of known or foreseeable dangers.” Id. (quoting Flaherty v.
Royal Caribbean Cruises, Ltd., No. 15-cv-22295, 2015 WL 8227674, at *3 (S.D. Fla. Dec. 7,
2015)). However, in order to have a duty to warn of a danger, the cruise line must have “actual or
constructive notice of the unsafe condition.” Horne v. Carnival Corp., 741 F. App’x 607, 608 (11th
Cir. 2018) (citing Keefe, 867 F.2d at 1322). The duty of reasonable care requires, “as a prerequisite
to imposing liability, that the carrier have had actual or constructive notice of the risk-creating
condition.” Keefe, 867 F.2d at 1322. “In other words, a cruise ship operator’s duty is to shield
passengers from known dangers (and from dangers that should be known), whether by eliminating
the risk or warning of it.” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1178 (11th Cir. 2020).
Thus, a cruise-ship operator’s liability often “hinges on whether it knew or should have known
about the dangerous condition.” Guevara, 920 F.3d at 720. However, “the notice requirement does
not—and was never meant to—apply to maritime negligence claims proceeding under a theory of
vicarious liability.” Yusko, 4 F.4th at 1167.

As in Count I, it is unclear whether Plaintiff’s failure to warn claim in Count II is based on
the action—or inaction—of Defendant or Defendant’s employees. Plaintiff alleges that the
dangerous condition was created by Defendant’s failure “to properly operate the gangway on the
Incident Date,” an assertion which sounds in vicarious liability for the discrete negligence of a
specific employee. See ECF No. [1] ¶ 12. However, Plaintiff argues Defendant “owes a duty as a
common carrier to its passengers to warn of dangers known to [Defendant,]” thereby suggesting
that Defendant is directly liable for negligence. Id. ¶ 28. Plaintiff also alleges that Defendant had
“constructive knowledge of the dangerous condition because . . . employees were stationed at the
embarkment point to facilitate passengers entering or leaving the Vessel safely.” Id. ¶ 14.

However, if the dangerous condition was the Defendant’s “fail[ure] to properly operate the
gangway on the Incident Date,” id. ¶ 12, it is unclear how this would establish notice on the part
of the “employees who were stationed at the embarkment point.” Id. ¶ 14. Furthermore, as
Defendant points out, Plaintiff’s “allegation that the dangerous condition existed for a ‘sufficient
length of time,’ . . . is entirely conclusory.” ECF No. [6] at 8 (quoting ECF No. [1] ¶ 30). A “theory
of constructive notice fails” where “Plaintiff provides no factual allegations regarding how long
this condition allegedly existed prior to the accident.” Kendall v. Carnival Corp., No. 23-cv-22921,
2023 WL 8593669 at *3 (S.D. Fla. Dec. 8, 2023).
To the extent that Plaintiff raises new factual allegations regarding Defendant’s knowledge
of the dangerous condition in her Response, the Court disregards those allegations when deciding
a motion to dismiss. McKally v. Perez, 87 F. Supp. 3d 1310, 1317 (S.D. Fla. 2015) (“[A] complaint
may not be amended by briefs in opposition to a motion to dismiss.”); Bruhl v. PriceWaterhouse
Coopers Int’l, No. 03-cv-23044, 2007 WL 997362, at *4 (S.D. Fla. Mar 27, 2007) (“Plaintiffs
cannot supplant the allegations of the [Complaint] with new arguments set forth in their response

to a motion to dismiss.”).
Plaintiff also raises a negligence per se claim, stating Defendant “was under a legal duty
to comply with mandatory international vessel safety regulations” and “industry safety standards”
that are promulgated by the “International Maritime Organization (IMO), the U.S. Coast Guard,
the U.S. Access Board, and the American Society for Testing and Materials (ASTM)
International.” ECF No. [1] ¶¶ 32, 33, 35. Defendant argues that Plaintiff’s statements that
Defendant was under a legal duty to comply with certain industry safety standards are “conclusory
statements” because Plaintiff “does not allege anywhere in the Complaint that these standards
apply to the dangerous condition alleged in this manner nor how [Defendant] allegedly violated

the standards.” ECF No. [6] at 5-6. Plaintiff fails to respond to this argument in her Response,
indicating that Defendant’s argument regarding a negligence per se claim has merit. See, e.g, Jones
v. Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (quoting Kramer v. Gwinnett Cnty.,
Ga., 306 F. Supp. 2d 1219, 1221 (N.D. Ga. 2004)).
“The elements of negligence per se are: (1) violation of a regulation; (2) causing the type
of harm that the regulation was intended to prevent; and (3) injury to a member of the class of
persons intended to be protected by the regulation.” Exum v. Nat’l Tire & Battery, 437 F. Supp.
3d 1141, 1158 (S.D. Fla. 2020) (quoting Lemma Ins. (Europe) Co., Ltd. v. Rumrunner Sport
Fishing Charters, Inc., No. 11-cv-2110, 2012 WL 254134, at *2 (M.D. Fla. Jan 27, 2012). Indeed,
Plaintiff asserts a legal conclusion that Defendant’s “violation of applicable and mandatory safety
regulations and standards constitutes negligence per se,” but at no point states how Defendant
violated these regulations and standards, whether Plaintiff suffered the type of harm that the
regulation was intended to prevent, and whether Plaintiff is a member of the class of persons
intended to be protected by the regulation. All of these elements must be plead should Plaintiff

intend to allege a claim of negligence per se.
C. Leave to Amend
In her Response, Plaintiff states that she “should be granted a reasonable opportunity to amend
her pleadings.” ECF No. [24] at 3. Because the time in which Plaintiff may amend her pleading as
a matter of course has elapsed, Federal Rule of Civil Procedure 15(B)(2) applies. See Fed. R. Civ.
P. 15(B). Rule 15(B)(2) states “a party may amend its pleading only with . . . the court's leave. The
court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(B)(2). Defendant
responds that Plaintiff’s request to amend should be denied because “it is well settled that
requesting such relief in a Response is improper.” ECF No. [27] at 3 n.1 (citing Rygula v. NCL

(Bahamas) Ltd., No. 18-cv-24535, 2019 WL 13237012 (S.D. Fla. Aug. 28, 2019)). Although it is
true that “where a request for leave to file an amended complaint simply is imbedded within an
Case No. 24-cv-22767-BLOOM/Elfenbein

opposition memorandum, the issue has not been raised properly,” Newton v. Duke Energy Fla.,
LLC, 895 F.3d 1270, 1277 (11th Cir. 2018), the Court nonetheless has the discretion to grant leave
to amend sua sponte. Indeed, the Eleventh Circuit has held that “[w]hen a litigant files a shotgun
pleading, is represented by counsel, and fails to request leave to amend, a district court must sua
sponte give him one chance to replead before dismissing his case with prejudice on non-merits
shotgun pleading grounds.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018)
(emphasis added). It is only after that “opportunity to replead comes and goes” that the district
court may “dismiss with prejudice if the party has still neither filed a compliant pleading nor asked
for leave to amend.” /d. Therefore, Plaintiff is granted leave to file an Amended Complaint.

IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion, ECF No. [6], is GRANTED.
2. The Complaint, ECF No. [1] is DISMISSED WITHOUT PREJUDICE.
3. Plaintiff shall file an Amended Complaint no later than March 7, 2025.
DONE AND ORDERED in Chambers at Miami, Florida, on February 21, 2025.

UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10805117. Public record. Not legal advice.