United States District Court, S.D. Florida, Miami Division
ORDER ON DEFENDANT'S MOTION TO DISMISS
JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE.
Carnival Corporation has filed a motion to dismiss the
Complaint filed by Plaintiff Samir Gharfeh. [ECF Nos. 1; 12');">12');">12');">12].
Gharfeh filed an opposition response, and Carnival filed a
reply. [ECF Nos. 22; 26]. For the reasons outlined below, the
Undersigned grants the motion in small part and
denies it in large part. Plaintiff has 14 days from
the date of this Order to file an optional amended complaint.
Factual and Procedural Background
lawsuit arises from a cruise he took as a passenger aboard
the Carnival Freedom in February 2016. At bottom, it
focuses on the care and treatment he received (or did not
receive) while aboard the ship. Although the Complaint is
comparatively long (at slightly more than 39 pages), the gist
of it can be summarized succinctly:
alleges that, during the cruise, he experienced lower
abdominal pain consistent with his past flares of
diverticulitis. The ship's medical staff and
Carnival's shipboard physician, Defendant Catalina
Carvajal, M.D., refused to provide Gharfeh's son, who is
a physician, with antibiotics without a prior written
prescription, so that he could give them to his father.
Gharfeh alleges that he became febrile and that his blood
pressure began to drop overnight. But both the medical center
and Dr. Carvajal nevertheless refused to give Gharfeh's
doctor son the appropriate antibiotics.
medical team ultimately transferred Gharfeh to the medical
center, and Dr. Carvajal (a co-defendant who apparently has
never been served with the Complaint and who has not filed a
substantive response to it) diagnosed Gharfeh with a small
bowel obstruction. Gharfeh once again became febrile and his
blood pressure dropped overnight. After the ship docked in
Galveston, Texas the next day, his vitals started to crash,
and Dr. Carvajal put Gharfeh on pressors through a peripheral
was then transported to the University of Texas Medical
Branch and was placed on a central line, intubated, and taken
for a CT scan, which confirmed that he had perforated
diverticulitis. Gharfeh alleges that Defendants'
misdiagnosis and delay in proper treatment allowed the
diverticulitis to “cause bowl [sic] perforation which
in turn spread the infection into [his] gut causing septic
shock” and resulted in a series of surgeries and
complications. [ECF No. 1, pp. 17-18 ¶ 40].
asserted five counts against Carnival: (1) Negligent Medical
Treatment - Vicarious Liability (Count I); (2) Negligent
Provisioning And Equipping of Medical Facility - Direct
Liability (Count III); (3) Negligent Failure to Evacuate
Passenger and/or Evacuate Passenger Appropriately - Direct
Liability (Count IV); (4) Negligent Hiring, Selection,
Retention, Monitoring, and Training of the Onboard Medical
Staff - Direct Liability (Count V); and (5) Breach of Third
Party Beneficiary Contract (Count VI). He also alleged a
negligence claim against Dr. Carvajal under Count II.
Carnival's Arguments in Support of its Motion to
Carnival argues that Count I should be dismissed for three
reasons: (1) it improperly consolidates multiple claims into
a single count, in violation of Federal Rule of Civil
Procedure 10(b); (2) Gharfeh is improperly attempting to hold
Carnival directly liable for the purported negligence of its
onboard medical personnel and improperly imposing a
non-existent duty to warn of the medical center's and
staff's limitations; and (3) Gharfeh has failed to plead
facts that might plausibly establish the existence of a joint
venture between Carnival and its shipboard physicians and
Carnival contends that Count II should be dismissed because a
shipowner does not have a duty to provide its passengers with
medical equipment or to promulgate and enforce policies or
procedures concerning medical care.
Carnival says that Count III should be dismissed because
Carnival did not have a duty to provide Gharfeh with medical
transportation, to evacuate Gharfeh off of the ship, or to
divert the ship.
Carnival argues that Count IV should be dismissed because (1)
shipowners have no duty to monitor or train onboard
physicians or medical staff and (2) Gharfeh has failed to
allege ultimate facts supporting a claim for negligent
hiring, selection, or retention.
and finally, Carnival contends that Count V should be
dismissed because Gharfeh cannot plausibly allege that
Carnival breached the contracts with its shipboard
physicians and medical staff, contracts that obligated the
physicians and staff to provide medical care on the ship.
reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12');">12');">12');">12(b)(6), a court must take as true all
well-pleaded facts in the complaint and all reasonable
inferences drawn from those facts. Jackson v. Okaloosa
Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994).
“A pleading must contain ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief.'” Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). While
detailed factual allegations are not always necessary in
order to prevent dismissal of a complaint, the allegations
must “‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)).
complaint cannot simply contain “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” or “an unadorned,
the-defendant- unlawfully-harmed-me accusation.”
Twombly, 550 U.S. at 555; Iqbal, 556 U.S.
at 678. Nor can a complaint just 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)). Rather, “[t]o survive a motion to dismiss a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at
678. (quoting Twombly, 550 U.S. at 570)
(emphasis added); see also Am. Dental Assoc. v. Cigna
Corp., 12');">12');">12');">1283');">605 F.3d 12');">12');">12');">1283, 12');">12');">12');">1288-90 (11th Cir. 2010).
whether a complaint states a plausible claim for relief is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. Moreover, when
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged -- but it has not “show[n]” --
“that the pleader is entitled to relief.”
the court is required to accept as true all allegations
contained in the complaint, courts “are not bound to
accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555;
Iqbal, 556 U.S. at 678. “Dismissal pursuant to
Rule 12');">12');">12');">12(b)(6) is not appropriate ‘unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.'” Magluta v. Samples, 375 F.3d
12');">12');">12');">1269, 12');">12');">12');">1273 (11th Cir. 2004) (quoting Conley, 355
U.S. at 45-46). Although, as noted, a court must accept as
true a plaintiff's allegations, a court may dismiss a
complaint on a dispositive issue of law. Marshall Cnty.
Bd. of Educ. v. Marshall Cnty. Gas Dist., 992
F.2d 1171, 1174 (11th Cir. 1993).
“Shotgun Pleading” Rule
the “shotgun pleading” rule -- a common defense
challenge and one that Carnival is pursuing here -- the
Eleventh Circuit provided a comprehensive guide to the
applicable rules in Weiland v. Palm Beach County
Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015).
Rule 8(a)(2) requires a complaint to include “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” And Rule 10(b) further provides
that “a party must state its claims or defenses in
numbered paragraphs, each limited to a single set of
circumstances.” Recognizing that courts sometimes used
the term “shotgun pleading” to simply mean
“poorly drafted complaint, ” the Weiland
Court identified four types of shotgun pleadings.
Weiland, 792 F.3d at 1321.
“unifying characteristic” of all categories of
impermissible shotgun pleadings is “that they fail to
one degree or another, and in one way or another, to give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at
one category of “shotgun pleading” is at issue
here: the third type, which “commits the sin of not
separating into a different count each cause of action or
claim for relief.” Id. at 1322-23; see
Bickerstaff Clay Prods. Co. v. Harris Cty., 89 F.3d
1481, 1485 n.4 (11th Cir. 1996) (explaining that complaint
was “a typical shotgun pleading” because
“some of the counts present more than one discrete
claim for relief”). A dismissal under Rules 8(a)(2) and
10(b) is appropriate “where ‘it is virtually
impossible' to know which allegations of fact are
intended to support which claim(s) for relief.”
Weiland, 792 F.3d at 1325 (emphasis in original).
Circuit very recently explained yet again the analysis
required for shotgun pleadings in Vibe Micro, Inc. v.
Shabanets, No. 16-15276, 2018 WL 268849 (11th Cir. Jan.
3, 2018). In that case, the Court noted that “Courts in
the Eleventh Circuit have little tolerance for shotgun
pleadings” because “[t]hey 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. at
*2 (internal quotations omitted). The Court also explained
that a district court's “inherent authority to
control its docket and ensure the prompt resolution of
lawsuits” includes the “ability to dismiss a
complaint on shotgun pleading grounds.” Id.
Gharfeh and Carnival extensively rely on Franza v. Royal
Caribbean Cruises, Ltd., 12');">12');">12');">1225');">772 F.3d 12');">12');">12');">1225 (11th Cir. 2014),
a comprehensive and detailed treatment of federal general
maritime law applied in a medical malpractice setting.
Franza rejected as “an outdated rule that
serves no useful purpose in modern maritime law” a
non-binding Fifth Circuit case that many district courts in
this Circuit had relied on for several years in rejecting
passengers' claims against cruise ships for medical
malpractice under a respondeat superior theory of
vicarious liability: Barbetta v. S/S Bermuda Star,
848 F.2d 1364 (5th Cir. 1998). Franza, 772 F.3d at
12');">12');">12');">1248. After providing a nuanced historical summary and
analysis of general maritime law and its application to
medical negligence claims, Franza held: “we do
not find that the arguments set forth in Barbetta
justify its broad grant of immunity from vicarious liability
in all claims of medical malpractice.” Id.
Franza Court further held that medical malpractice
claims by passengers are also permissible under an
apparent agency theory of liability, thus allowing a
passenger to sue a shipowner for medical negligence “if
he can properly plead and prove detrimental, justifiable
reliance on the apparent agency of a ship's medical
staff-member.” Id. at 12');">12');">12');">1249.
addition to discussing the legal viability of passengers'
claims against shipowners in a medical malpractice context,
Franza also discussed myriad policy reasons
underlying its holding. Because both sides here rely so
heavily on Franza and because that case analyzes and
discusses many principles which apply here and which render
some earlier district court evaluations inapplicable or
unhelpful, a full discussion is appropriate.
appellate court succinctly outlined the facts:
In this maritime negligence dispute, an elderly cruise ship
passenger fell and bashed his head while the vessel, the
“Explorer of the Seas, ” was docked at port in
Bermuda. The injured traveler, Pasquale Vaglio, was wheeled
back onto the ship, where he sought treatment from the
onboard medical staff in the ship's designated medical
center. Over the next few hours, Vaglio allegedly received
such negligent medical attention that his life could not be
saved. In particular, the ship's nurse purportedly failed
to assess his cranial trauma, neglected to conduct any
diagnostic scans, and released him with no treatment to speak
of. The onboard doctor, for his part, failed even to meet
with Vaglio for nearly four hours. Tragically, Vaglio died
about a week later. Now, Vaglio's daughter, appellant
Patricia Franza, seeks to hold the cruise line, Royal
Caribbean Cruises, Ltd. , vicariously liable for the
purported negligence of two of its employees, the ship's
doctor and its nurse, under one of two theories: actual
agency (also termed respondeat superior) or apparent agency.
Id. at 12');">12');">12');">1227-28.
also provided the procedural context in a ...