United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant Carnival
Corporation's (“Carnival” or
“Defendant”) Motion to Dismiss Plaintiff's
First Amended Complaint, ECF No.  (“Motion”).
Plaintiff Sherry Johnson (“Johnson” or
“Plaintiff”) filed a response, ECF No. 
(“Response”), to which Carnival filed a reply,
ECF No.  (“Reply”). The Court has carefully
considered the Motion, Response and Reply, the record in this
case and the applicable law, and is otherwise fully advised.
For the reasons that follow, the Motion is granted in part.
case arises as a result of alleged injuries sustained by
Johnson on board one of Carnival's ships, the M/S
Freedom. In the Amended Complaint, ECF No. , Plaintiff
alleges that while she was a passenger on the M/S Freedom,
she was going down the staircase between decks four and three
when her shoe got caught on the metal nosing on a step,
causing her to trip and fall down the staircase. The fall
resulted in serious injuries, including a fractured right
fibula, which required surgical repairs.
Amended Complaint, Johnson asserts a claim for negligence
against Carnival based on multiple theories. In the Motion,
Carnival seeks dismissal of the Amended Complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
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.
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 Cty.
Sheriff's Office, 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).
Motion, Carnival argues that the Amended Complaint is a
shotgun pleading, and in any event, fails to sufficiently
alleged actual or constructive notice. The Court considers
each argument in turn.
outset, the Court notes that Plaintiff's counsel have
already been advised multiple times in several cases about
the disfavor with which the courts in this District and
Circuit view shotgun pleadings. The Eleventh Circuit has
repeatedly and unequivocally condemned shotgun pleadings as a
waste of judicial resources. “Shotgun pleadings,
whether filed by plaintiffs or defendants, 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
para-judicial personnel and resources. Moreover, justice is
delayed for the litigants who are ‘standing in
line,' waiting for their cases to be heard.”
Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356-57
(11th Cir. 2018) (quoting Cramer v. Fla., 117 F.3d
1258, 1263 (11th Cir. 1997)).
counsel has had at least seven complaints in maritime
personal injuries cases stricken or dismissed on the basis
that they constitute shotgun pleadings. See Noon v.
Carnival Corp., Case No. 1:18-cv-23181-KMW, ECF Nos.
, ; Elliott-Savory v. Royal Caribbean Cruises
LTD., Case No. 1:19-cv-23662-RNS, ECF No. ;
Humphreys v. Carnival Corp., 1:18-cv-24783-RNS, ECF
No. ; Lucas v. Royal Caribbean Cruises, LTD.,
1:19-cv-20914-RNS, ECF No. ; Corgiat v. Carnival
Corp., 1:19-cv-20577-RNS, ECF No. ; Ortega v.
Royal Caribbean Cruises, Ltd.,
1:19-cv-22453-RNS, ECF No. . Rather than constituting the
“preferences of one judge, ” which are not
“rules of civil procedure or even local rules of this
district, ” as Plaintiff contends, the orders in these
cases are the Court properly applying federal pleading
standards. Moreover, each Court has repeatedly determined
that Plaintiff's counsel's complaints fail for the
exact same reasons.
Plaintiff's contentions to the contrary, the Court agrees
that the Amended Complaint here is another shotgun pleading
that does not conform to federal pleading
standards.Rule 10(b) states that “[a] party
must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of
circumstances. [. . .] If doing so would promote clarity,
each claim founded on a separate transaction or occurrence .
. . must be stated in a separate count . . . .”
Fed.R.Civ.P. 10(b). Moreover, the failure to identify claims
with sufficient clarity to enable the defendant to frame a
responsive pleading constitutes a “shotgun
pleading” that violates Rule 8(a)(2). Byrne v.
Nezhat, 261 F.3d 1075, 1129-30 (11th Cir. 2001),
abrogated on other grounds by Douglas Asphalt Co. v.
QORE, Inc., 657 F.3d 1146 (11th Cir. 2011). Shotgun
pleadings fail to make the connection between “the
substantive count and the factual predicates . . . [such
that] courts cannot perform their gatekeeping function with
regard to the averments of [the claim].” Wagner v.
First Horizon Pharm. Corp., 464 F.3d 1273, 1279-80 (11th
the Amended Complaint asserts multiple claims for relief in
one section labeled “Liability and Damage
Allegations.” See ECF No.  ¶¶
9-20; Davis v. Coca-Cola Bottling Co. Consol., 516
F.3d 955, 979-80 (11th Cir. 2008) (condemning shotgun
pleading that bunched together “untold causes of
action” in one count), abrogated on other grounds
by Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Plaintiff's claims are not separately labeled, though the
basis of her claims is negligence based upon at least three
different theories-failure to maintain, failure to establish
adequate policy and procedures, and failure to warn.
Id. ¶ 19. These theories should be asserted
separately with supporting factual allegations. See
Garcia v. Carnival Corp., 838 F.Supp.2d 1334, 1337 (S.D.
Fla. 2012) (negligence count that alleged that defendant owed
a duty to “provide [ ] reasonable care under the
circumstances” and then proceeded to allege at least
twenty-one ways in which the defendant breached this duty
epitomized a form of shotgun pleading); Brown v. Carnival
Corp. 202 F.Supp.3d 1332, 1338 (S.D. Fla. 2016) ...