United States District Court, S.D. Florida, Miami Division
ORDER GRANTING IN PART CARNIVAL'S MOTION TO
LAWRENCE KING UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Carnival
Corporation's Motion to Dismiss (the "Motion")
(DE 12), filed September 13, 2019. Pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, Carnival seeks
dismissal of Plaintiff Desiree Moreno's Amended
Complaint. (DE 10). Plaintiff filed a response in opposition
to the Motion on September 27, 2019. (DE 13). Carnival filed
a reply in support of the Motion on October 7, 2019 (DE 17)
and subsequently filed a Notice of Supplemental Authority in
support of the Motion on November 18, 2019. (DE 20).
Accordingly, this matter is now ripe for disposition.
background, this case arises from a slip-and-fall on a water
taxi during an excursion from a Carnival
cruise. (See generally Mot. at 1).
According to the Amended Complaint, Plaintiff was a passenger
on the Carnival Horizon, which called on St. Kitts,
West Indies on or about March 27, 2019. (Am. Compl.
¶¶ 6, 34). Plaintiff departed the ship and
participated in an excursion called the "Beach
Day," (id ¶ 35), which was operated by
Defendant Kantours and marketed by Carnival. (Id.
¶ 24). After the excursion, Kantours "rushed the
excursion participants onto a water taxi, which had steps to
get onto." (Id. ¶ 36). The steps were wet
and slippery, causing Plaintiff to fall and sustain injuries.
(Id. ¶ 37-38). Plaintiff then filed this action
on July 12, 2019, claiming: (1) negligence against Carnival
(Count I); (2) negligent selection and retention against
Carnival (Count II); (3) negligence against Kantours (Count
III); (4) apparent agency or agency by estoppel against
Carnival (Count IV); (5) joint venture between Carnival and
Kantours (Count V); and (6) breach of a third-party
beneficiary contract between Carnival and Kantours (Count
VI). (See generally Am. Compl.).
now moves to dismiss the Amended Complaint in its entirety as
an "impermissible shotgun pleading." (Mot. at 1).
Additionally, Carnival moves, to dismiss Counts I, II, IV, V,
and VI, which (if granted) would effectively remove Carnival
from the case and leave Count III- negligence against
Kantours-as the only remaining count. (See generally
id.). As to Count I, Carnival argues that Plaintiff
fails to allege facts supporting that Carnival knew or should
have known that the water taxi's steps were unreasonably
wet or slippery. (Id. at 2). As to Count II,
Carnival argues that Plaintiff fails to allege facts
supporting that Kantours was incompetent as a tour operator
or that Carnival otherwise knew or should have known about
Kantours' particular incompetence. (Id.). As to
Count IV, Carnival argues that "apparent agency" is
not an independent cause of action. Moreover, according to
Carnival, "the materials that [Plaintiff] references in
the Amended Complaint and makes central to her claim
establish that independent contractors operated all tours and
thus contradict her allegations." (Id.). As to
Count V, Carnival likewise argues that the claim for joint
venture fails because "the very Tour Operator Agreement
that Plaintiff references in the Amended Complaint and
make[s] central to her claim contradicts her
allegations." (Id.). And as to Count VI,
Carnival argues that the third-party beneficiary claim should
be dismissed because the above-referenced tour operator
agreement indicates that Plaintiff was not an "intended
beneficiary" of the contract between Carnival and
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.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl Corp. v. Twombly, 550 U.S. 544, 5.70
(2007)). To meet this "plausibility" standard, a
plaintiff must plead "factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. at 678.
A complaint must contain "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555. While the Court's review is generally confined to
the four corners of the complaint, when "the plaintiff
refers to certain documents in the complaint and those
documents are central to the plaintiffs claim, then the Court
may consider the documents ... for purposes of Rule 12(b)(6)
dismissal." Brooks, 116 F.3d at 1369.
The Amended Complaint is an Impermissible Shotgun
Eleventh Circuit "has been roundly, repeatedly, and
consistently condemning [shotgun pleadings] for years."
Vice Micro, Inc. v. Shabanets, 878 F.3d 1291,
1294(11th Cir. 2018) (internal quotation marks omitted).
"A shotgun-style complaint [is] one that incorporates
all of the general factual allegations by reference into each
subsequent claim for relief." Great Fla. Bank
v. Countrywide Home Loans, Inc., No.
10-22124-CIV, 2011 WL 382588, at *2 (S.D. Fla. Feb. 3, 2011)
(internal quotation marks omitted). "Shotgun
pleadings" are disfavored because they make it
"virtually impossible to know which allegations of fact
are intended to support which claim(s) for relief."
Anderson v. Dist. Bd. of Trustees of Cent: Fla. Cmty.
Coll., 77 F.3d 364, 366(11th Cir. 1996). Moreover, they
"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."
Vibe Micro, 878 F.3d at 1295 (internal quotation
the Amended Complaint begins each count by incorporating the
forty-six paragraphs of general factual allegations into each
subsequent claim for relief, making no effort to marshal
those allegations for the particular claim being asserted.
For example, one of the "General Allegations" in
the Amended Complaint is that "Carnival exercises or
exercised control over the subject excursion in its
requirements for its operation, insurance, and safety."
(Am. Compl. ¶ 43). It is not clear whether Plaintiff
intends this allegation to support the claim against Carnival
for negligence (Count I), apparent agency (Count IV), joint
venture (Count V), or some combination thereof.
the Amended Complaint is "replete with conclusory,
vague, and immaterial facts not obviously connected to any
particular cause of action." Weiland v. Palm Beach
Cty. Sheriffs Office, 792 F.3d 1313, 1322 (11th Cir.
2015) (describing complaints with vague and conclusory
allegations as another type of shotgun pleading). For
example, the Amended Complaint alleges that Carnival had
"constructive knowledge of the unreasonably dangerous
and/or risk-creating conditions [because] [p]revious
incident(s) such as Plaintiffs occurred, and or complaint(s)
were made, so as to impute notice upon Carnival." (Am.
Compl. ¶ 5l(B)(b)). Moreover, regarding the negligence
claim against the excursion operator, the Amended Complaint
alleges that Kantours "knew or should have known of the
foregoing conditions causing the subject incident and did not
correct them, and/or the condition existed for a sufficient
length of time so that the excursion providers, in the
exercise of reasonable care under the circumstances, should
have learned of them." (Id. ¶ 67). Because
of this, as in Serra-Cruz, "[t]he Court agrees
with Carnival that Plaintiff has insufficiently pled notice
because she has failed to articulate what facts gave
[Defendants] actual or constructive notice about any
dangerous condition." Serra-Cruz v. Carnival
Corp., Case No.: l:18-cv-23033-UU, 2019 U.S. Dist. LEXIS
23591, at *23 (S.D. Fla. Feb. 12, 2019). Simply put,
"there is no explanation as to how these,
incidents put [Defendants] on, notice." Id. at
*23-24 (emphasis in original); see also Polanco v.
Carnival Corp., Case No.: 10-21716-CIV-JORDAN, 2010 U.S.
Dist. LEXIS 150857, at"*7 (S.D. Fla. Aug. 11, 2010)
("There are also no details about the similar past
incidents that Carnival allegedly failed to investigate. What
were the incidents, and how were they similar? When did they
occur? Who was. the excursion . operator? Who were the
drivers of the motor vehicles in the other incidents? How did
Carnival learn of the incidents? The complaint is bereft of
information on these material issues. It therefore fails to
state a claim for negligence, and is dismissed without
The Third-Party Beneficiary Claim (Count VI)
VI asserts a claim for breach of contract premised on
Plaintiff being a third-party beneficiary to the excursion
contract between Carnival and Kantours. (See
generally Am. Compl. ¶ 94). According to the
Amended Complaint, "[a]n implied term of the subject
contract between' Carnival and Kantours is that Kantours
will provide a safe and secure excursion for Carnival
passengers." (Id. ¶ 96). Therefore,
according to the Amended Complaint, "[t]he intended
third-party beneficiaries of this contract between the