United States District Court, S.D. Florida
ORDER STRIKING COMPLAINT AND REQUIRING AMENDED
N. Scola, Jr. United States District Judge
matter is before the Court on an independent review of the
record. This maritime tort action arises from injuries
allegedly sustained by Plaintiff Sheila Elliot-Savory while
she was seated in a tender belonging to the Defendant.
According to the complaint, the captain of the tender lost
all steering capability and the tender collided violently
with the cruise ship, causing the Plaintiff to be thrown
about the inside of the tender. (ECF No. 1 at ¶ 12.)
This complaint, however, is a shotgun pleading. The Court
therefore strikes it.
anyone in the Plaintiff's law firm read the Court's
orders? Apparently not. Sadly and disappointingly at this
point, this is at least the fourth time the Court has found
itself admonishing attorneys David L. Markel, Edward Steven
Schwartz, Philip Maurice Gerson, and Nicholas I. Gerson, and
at least the third time admonishing attorney Raul Gabriel
Delgado, II-all of the law firm Gerson & Schwartz-for
similar shortcomings arising out of other complaints assigned
to this Court. See Humphreys v. Carnival,
1:18-cv-24783, ECF No. 5 (S.D. Fla. Mar. 7, 2019); Lucas
v. Royal Carribean, 1:19-cv-20914, ECF No. 5 (S.D. Fla.
Mar. 22, 2019); Corgiat v. Carnival, 1:19-cv-20577,
ECF No. 4 (S.D. Fla. Feb. 12, 2019); Ortega v. Royal
Caribbean Cruises, Ltd., 1:19-cv-22453, ECF No. 5 (S.D.
Fla. June 14, 2019).
Court has explained to these attorneys before, multiple
claims for relief cannot all be dumped into one nebulous
count. Indeed, this complaint does not even contain counts.
After the jurisdictional allegations, it contains one section
titled “Liability and Damage Allegations.” (ECF
No. 1 at 2.) The Plaintiff does not separately title or label
her claims but seems to assert one count of negligence under
the following theories of liability:
a. The Defendant failed to maintain the steering and
navigation system in a reasonably safe condition;
b. Failing to properly, timely and routinely inspect the
steering and navigation system for defects;
c. Failing to establish, implement, and enforce policies and
procedures regarding inspection and maintenance of the
steering and navigation system for defects;
d. Failing to have in place a functioning back up steering
e. Failing to have a safety kill switch to turn off the
f. Failing to outfit the tender with handholds and seats with
seat belts and hand grips for passengers to secure
themselves; g. Failing to remove the tender from service.
(Id. at ¶ 16.)
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). 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). 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”).
Complaint is a shotgun pleading and is stricken accordingly.
In this complaint, the Plaintiff lists at least three
theories of liability, failure to maintain a safe steering
and navigation system, negligent design, and failure to
maintain adequate policies and procedures. (ECF No. 1 at
¶ 16.) These are separate causes of action that must be
asserted independently and with 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 Defendant owed a duty of
“reasonable care under the circumstances, ” and
then “proceed[ed] to allege at least twenty-one ways in
which Defendant 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 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.”).
complaint also fails to include any factual allegations to
support the Plaintiffs claims of negligence. The only facts
asserted are that on September 3, 2018, the Plaintiff boarded
a tender and the captain lost steering capability. The tender
collided with the cruise ship which caused the Plaintiff to
be thrown about the inside of the tender and sustain
injuries. (ECF No. 1 at ¶ 12.) “Plaintiff has done
little more than assert fact-free, wholly conclusory,
boilerplate allegations . . . Plaintiff has failed to allege
facts that are suggestive enough to render each element of
his claim for negligen[ce] [ ] plausible.” Gharfeh
v. Carnival Corp., 309 F.Supp.3d 1317, 1332-33 (S.D.
Fla. 2018) (Goodman, Mag. J.). In its current form, the
complaint fails to give the Defendant “adequate notice
of the claims against them and the grounds upon which each
claim rests.” Id. at 1322.
the Court strikes the Complaint,
(ECF No. 1), as a shotgun pleading. The
Plaintiff may file an amended complaint by September
18, 2019, provided it complies with this order,
Federal Rules of Civil Procedure 8(a) and 10(b), and the
Iqbal/Twombly standard. Specifically, the Plaintiff
shall assert each theory of liability as a separate cause of
action. And any legal conclusions that form the basis for
those claims must be supported by good faith factual
allegations. See Fed. R. Civ. P. 11(b);
Gayou, 2012 WL 2049431 at *6 (“Upon
repleading, however, [plaintiff] is reminded that any alleged
breaches, and the duties associated therewith, must be
consistent with federal maritime law and must be supported by
underlying factual allegations.”). The Plaintiff 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 ...