Opinion
Civil Action No. 18-24968-Civ-Scola
02-11-2019
Kathleen Moresco, Plaintiff, v. Carnival Cruise Lines, Defendant.
Opinion Order Striking Complaint
This matter is before the Court on an independent review of the record. This maritime tort action arises from injuries allegedly sustained by Plaintiff Kathleen Moresco ("Moresco") when she was assaulted by a fellow passenger onboard a ship operated by Defendant Carnival Cruise Lines. (ECF No. 1.) In the Complaint, Moresco asserts one count for "negligence," raising numerous distinct theories of liability, including for negligent failure to warn, negligent mode of operation, and negligently creating or allowing a dangerous condition. (See ECF No. 1 at pp. 4-7.)
"Courts 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). 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"). 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). The Complaint is this type of shotgun pleading.
Through a single "negligence" count, Moresco asserts multiple theories of liability. (ECF No. 1 at ¶ 16.) Each theory is a separate cause 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 ["forty-one"] 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."); Gayou v. Celebrity Cruises, Inc., No. 11-23359-Civ, 2012 WL 2049431, at *5-*6, n.2 (S.D. Fla. June 5, 2012) (Scola, J.) (under similar facts, ordering plaintiff to amend complaint to "separately allege an independent count" for various theories of liability that were lumped into a single maritime negligence claim); Flaherty v. Royal Caribbean Cruises, Ltd., No. 15-22295, 2015 WL 8227674, *3 n.3 (S.D. Fla. Dec. 7, 2015) (Lenard, J.) (same); Doe v. NCL (Bahamas) Ltd., 2016 WL 6330587, at *3 (S.D. Fla. Oct. 27, 2016) (Ungaro, J.) (holding that Plaintiff's "boilerplate allegations" of breach of duty failed to state a claim for negligent hiring and retention, training and supervision under maritime law, and ordering Plaintiff to "allege each of these three claims in separate Counts " in an amended complaint (emphasis in original)); Ciethami v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1349-50 (S.D. Fla. 2016) (Williams, J.) (holding that maritime negligence claim failed Rule 8(a), where the Plaintiff's "shotgun-style recitation[]" of "34 breaches of duty," "without any factual context," makes "any meaningful assessment of her claims difficult"); Gharfeh v. Carnival Corp., No. 17-20499, 2018 WL 501270, at *3, *6-*7 (S.D. Fla. Jan. 22, 2018) (Goodman, Mag. J.) (dismissing maritime negligence count that "improperly commingles claims" as an "impermissible shotgun pleading"); Gharfeh v. Carnival Corp., 309 F. Supp. 3d 1317, 1333, n.7 (S.D. Fla. 2018) (Goodman, Mag. J.) (dismissing negligence claim where Plaintiff "has done little more than assert fact-free, wholly conclusory, boilerplate allegations" and requiring in any amended pleading that the plaintiff "allege facts, not merely labels and boilerplate conclusions"); Ward v. Carnival Cruises, No. 17-24628, 2019 WL 342027, at **2-3, n.1, n.2 (S.D. Fla. Jan. 28, 2019) (Scola, J.) (collecting cases).
Accordingly, the Court strikes the Complaint, (ECF No. 1), as a shotgun pleading. Moresco may file an amended complaint by February 19, 2019, provided it complies with this order, Federal Rules of Civil Procedure 8(a) and 10(b), and the Iqbal/Twombly standard. Specifically, Moresco 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 made in good faith and supported by factual allegations. See Fed. R. Civ. P. 11(b); Gayou, 2012 WL 2049431 at *6 ("Upon re-pleading, 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."). Moresco 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 fails to comply with the court's order—by filing a repleader with the same deficiency—the court should strike his pleading or, depending on the circumstances, dismiss his case and consider the imposition of monetary sanctions." (quotations omitted)).
Finally, the Court notes that it gives no weight to the throw-away allegation that Carnival violated the "Cruise Vessel Security and Safety Act of 2010." If Moresco is bringing a claim under that act, she is required to assert it separately and with supporting legal and factual allegations.
Done and ordered, in Chambers, in Miami, Florida on February 11, 2019.
/s/_________
Robert N. Scola, Jr.
United States District Judge