UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA 

Miami Division

CASE NO.: 20-23087 DPG

PATRICIA VICKERS, as Surviving 

Spouse of JESSIE VICKERS, 

deceased, and on behalf of the Estate 

of JESSIE VICKERS, 

 

Plaintiff, 

 

v. 

 

CARNIVAL CORPORATION, 

 

Defendant. 

___________________________________/

DEFENDANT’S MOTION TO DISMISS

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Defendant, Carnival Corporation (“Carnival”), respectfully requests this Honorable Court to 

enter an Order dismissing all of the claims in Plaintiff’s Complaint pursuant to Federal Rules of 

Civil Procedure 12(b)(1) and 12(b)(6) and states:

I. ISSUES BEFORE THE COURT

This case involves an unprecedented attempt to impose liability on a business for failing to 

anticipate a global pandemic and medical insights about the novel coronavirus (COVID-19) by 

national and international public health authorities. Maritime law, however, does not permit tort 

liability based on a failure to foresee harm. The Court should dismiss the Complaint.

Plaintiff, Patricia Vickers, as surviving spouse of Jessie Vickers (“Decedent”), brought a twocount complaint against Carnival for negligence and vicarious liability for injuries allegedly 

leading to the death of Decedent due to the novel coronavirus1(COVID-19) following a cruise on 

the Carnival Ecstasy. [DE 1]. Plaintiff alleges that Carnival was negligent in allowing the cruise 

to depart and failing to implement measures that could have protected against the spread of 

COVID-19. But missing from the Complaint are factual allegations to establish that Carnival 

actually knew or should have known about the specific risk-creating condition. To the contrary, 

Plaintiff admits that the Ecstasy departed in early March, which was before the World Health 

Organization declared that COVID-19 a pandemic and before the Centers for Disease Control 

(CDC) issued an order barring certain operations by U.S. cruise ship operators. Absent allegations 

to establish that Carnival knew about the unique characteristics of COVID-19 before international 

and national public health authorities, Plaintiff’s claims rest on nothing more than a failure to 

foresee generalized harm. But courts have repeatedly recognized that maritime negligence cannot 

1 Coronaviruses are a large family of viruses, many of which can make people ill with sniffles or 

coughs. See https://www.webmd.com/lung/coronavirus-strains#1. SARS-CoV-2, which causes 

COVID-19, is one of several coronaviruses known to infect humans. Id. 

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rest on this thin read. Indeed, in light of the COVID-19 pandemic, permitting Plaintiff’s claims to 

proceed based on the allegations in the Complaint would similarly open the door to litigation 

against every business whose customers may have come into contact with the disease even though 

they operated consistent with public health mandates. 

Even if Plaintiff stated a claim, the Complaint has numerous additional failures that compel 

dismissal. First, Plaintiff failed to allege that she has standing and is the real party in interest such 

that she can maintain a claim on behalf of Decedent’s Estate. Second, Plaintiff’s claims are 

governed by the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30301 et seq. Finally, 

Plaintiff’s claims for attorney’s fees, and punitive damages and request for jury trial are 

impermissible and should be dismissed or stricken with prejudice.2

II. RELEVANT FACTS

Plaintiff and Decedent’s cruise on the Carnival Ecstasy commenced on March 9, 2020, from 

Jacksonville, Florida and returned four days later after having visited the Bahamas. [DE 1, ¶ 6].

Plaintiff alleges that because COVID-19 was found on two vessels, one sailing in Japan and 

another on the West Coast of the United States, Carnival knew that the Centers for Disease Control 

was investigating COVID-19 in California. [DE 1, ¶¶ 7-9]. Because there were instances of 

COVID-19 on a Princess cruise ship in Japan, which had sailed in and around Asia (the location 

of the first known outbreak of COVID-19), and Oakland, California, which is over 2,700 miles 

2 Additionally, Plaintiff’s venue allegation that the case was initially properly brought pursuant to

28 U.S.C. § 1391 is incorrect as the forum-selection clause in the cruise ticket contract specifies 

that all disputes shall be litigated in the Southern District of Florida. [DE 1, ¶ 4]. See Cruise Ticket 

Contract at 13 (c), attached herein as Exhibit 1. Plaintiff acknowledged the terms of the ticket 

contract as the basis of the removal of this action from the Southern District of Georgia to the 

Southern District of Florida. See 5:20-cv-00078-LGW-BWC, D.E. 7, “Joint Consent Motion To 

Transfer Action Pursuant To 28 U.S.C. §1404(a)” (hereinafter “Consent Motion”), and [ECF 8], 

“Consent Order Transferring Action To The U.S. District Court For The Southern District Of 

Florida, Miami Division, Pursuant To 28 U.S.C. §1404(a)” (“Consent Order”). 

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from Jacksonville, Florida, Plaintiff alleges that Carnival, a separate corporation from Princess 

Cruises, Ltd., knew or should have known that “some passengers and/or crew” on the Ecstasy were 

experiencing symptoms consistent with COVID-19. [DE 1, ¶ 11]. Plaintiff does not allege that 

anyone on the Ecstasy was actually even diagnosed with COVID-19 at the time of the subject 

cruise or how Carnival had notice of any such diagnosis.

Among the list of things Plaintiff believes Carnival should have done is to have passengers 

engage in social distancing. [DE 1, ¶ 22]. However, this particular cruise occurred at the earliest 

stages of what was to become a global pandemic and there were no social distancing 

recommendations at that time – the White House introduced social distancing guidelines3on 

March 16, 2020, after the cruise had ended.4 Plaintiff also alleges that Carnival failed to conduct 

adequate screening and/or evaluation to determine whether passengers of the Decedent were 

experiencing COVID-19 symptoms because some passengers and/or crew who sailed on the 

Ecstasy on a prior cruise “likely had COVID-19.” [DE 1, ¶ 23] (emphasis added). However, recent 

studies have shown that the pre-symptomatic and asymptomatic spread of COVID-19 has been 

medically documented.5 Due to the well-established high percentage of asymptomatic or pre3 The Court may take judicial notice of publicly available news reports, government publications, 

and medical studies without converting the motion to. See Jacobs v. Bank of Am. Corp., No. 1:15-

CV-24585-UU, 2017 WL 2361943, at *4 (S.D. Fla. Mar. 21, 2017), on reconsideration, No. 1:15-

CV-24585-UU, 2017 WL 2361944 (S.D. Fla. Apr. 27, 2017) (“In considering a motion to dismiss 

under Rule 12(b)(6), the Court may [take] judicial notice of facts that are not subject to reasonable 

dispute because they are capable of accurate and ready determination by resort to sources whose 

accuracy cannot reasonably be questioned.” ).

4

See White House Announces New Social Distancing Guidelines Around Coronavirus, NPR (Mar. 

16, 2020, 4:37 PM), https://www.npr.org/2020/03/16/816658125/white-house-announces-newsocial-distancing-guidelines-around-coronavirus.

5 One recent medical study noted “[o]ur results indicate that silent disease transmission during the 

pre-symptomatic and asymptomatic stages are responsible for more than 50% of the overall attack 

rate in COVID-19 outbreaks. Furthermore, such silent transmission alone can sustain outbreaks 

even if all symptomatic cases are immediately isolated.” See Seyed M. Moghadas et. al, The 

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symptomatic spread, nations, much less factories, bars, restaurants, grocery stores, beauty salons 

and barber shops have experienced difficulties identifying persons with COVID-19, testing for 

COVID-19 and containing the spread of the virus because so many people do not exhibit any 

symptoms at all. As a consequence, to this day nations have not yet determined how people can be 

properly screened for COVID-19.

III. LEGAL STANDARDS

Article III standing is jurisdictional and, therefore, a threshold inquiry. Stalley ex rel. United 

States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“Because 

standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for 

lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).”) “A facial attack on the 

complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis 

of subject matter jurisdiction, and the allegations in her complaint are taken as true for the purposes 

of the motion.” McElmurray v. Consol. Gov't of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 

(11th Cir. 2007). To survive this facial challenge to standing, the Complaint must include “general 

factual allegations of injury resulting from the defendant’s conduct.” Florida Pub. Interest 

Research Grp. Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070, 1083 (11th Cir. 2004).

To survive a motion to dismiss, a plaintiff must articulate “enough facts to state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[c]onclusory allegations, unwarranted factual 

implications of silent transmission for the control of COVID-19 outbreaks, PROC. OF THE NAT’L 

ACAD. OF SCI. OF THE U.S. (July 6, 2020), https://doi.org/10.1073/pnas.2008373117; see also Leah 

F. Moriarty et al., Public Health Responses to COVID-19 Outbreaks on Cruise Ships — Worldwide, 

February–March 2020, Centers for Disease Control & Prevention: Morbidity & Mortality Wkly. 

Rep. (March 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm (noting that 

46.5% of the passengers and crew on the Diamond Princess tested were asymptomatic). 

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deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta 

Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). The allegations must include “more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 662. A pleading 

that offers “labels and conclusions” or “a formulaic recitation of the elements of the cause of 

action” will not do. Twombly, at 555; “[A] plaintiff armed with nothing more than conclusions” 

cannot “unlock the doors of discovery.” Iqbal, 556 U.S. at 678-79.

IV. FEDERAL MARITIME LAW GOVERNS PLAINTIFF’S CLAIMS 

The law governing passenger suits against cruise lines is the general maritime law under a 

federal court’s admiralty jurisdiction. See e.g. Schoenbaum, Thomas J., ADMIRALTY & MARITIME 

LAW §3-5 (4th ed. 2004). Nevertheless, “the Court ‘ha[s] an independent duty to ensure admiralty 

jurisdiction exists before applying admiralty law.’” Belik v. Carlson Travel Grp., Inc., 26 F. Supp. 

3d 1258, 1264 (S.D. Fla. 2012) (quoting Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900 (11th 

Cir. 2004)). Courts have admiralty jurisdiction over incidents occurring on navigable waters and 

bearing a significant relationship to traditional maritime activities. “‘[A] party seeking to invoke 

federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy 

conditions both of location and of connection with marine activity.’” Id. (quoting Jerome B. 

Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043 (1995); see 

also Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); Keefe v. Bahama 

Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989). 

Plaintiff alleges Decedent contracted COVID-19 “on Defendant’s ship Carnival Ecstasy and 

subsequently died.” [DE 1, ¶3]. Plaintiff’s claims, therefore, satisfy the location condition for 

admiralty jurisdiction as Plaintiff’s causes of action arise from Plaintiff and Decedent’s cruise in 

navigable waters. Plaintiff’s claims also have the requisite connection to maritime activity as it is 

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indisputable that “the cruise line industry is maritime commerce.” Bird v. Celebrity Cruise Line, 

Inc., 428 F. Supp. 2d 1275, 1278–79 (S.D. Fla. 2005) (citing Doe v. Celebrity Cruises, Inc., 394 

F.3d 891, 901 (11th Cir. 2004)). Therefore, Plaintiff’s claims, “satisfy conditions both of location 

and of connection with marine activity,” and the Court has admiralty jurisdiction over this matter. 

See Belik, 26 F. Supp. 3d at 1264.

When the Court has admiralty jurisdiction, the general maritime law of the United States 

applies. In Bird v. Celebrity Cruise Line, Inc., the Court held that “‘[e]ven when ... the parties 

allege diversity of citizenship as a basis of subject matter jurisdiction, if admiralty jurisdiction also 

exists, federal maritime law governs the substantive issues in the case.’” 428 F. Supp. 2d at 1278

(quoting Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367, 1373 (S.D. Fla. 2002)); see 

also Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329, at *16 (S.D. 

Fla. Aug. 23, 2011) (“With admiralty jurisdiction comes the application of substantive admiralty 

law” (quoting E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 106 S. Ct. 

2295, 2298 (1986)). Accordingly, federal maritime law applies to the instant action.6

V. PLAINTIFF’S CLAIMS MUST BE DISMISSED

A. Plaintiff Does Not Have Standing to Bring Suit and Is Not The Real Party In 

Interest

“A party has standing to prosecute a suit in the federal courts only if he is the ‘real party in 

interest’ as that term is defined under Fed. R. Civ. P. 17(a).” U.S. v. 936.71 Acres of Land, More 

6 Carnival additionally notes that Plaintiff and Decedent’s ticket contract for the subject cruise 

stipulates that any dispute shall be governed by federal maritime law. See Exhibit 1 at section 13 

(e), (“any and all disputes whatsoever arising out of or relating to this Contract or Guest's

Cruise as well as the interpretation, applicability and enforcement of this Contract shall be 

governed exclusively by the general federal maritime law of the United States.”); see also 

Consent Motion; Consent Order.

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or Less, in Brevard Cty., State of Fla., 418 F.2d 551, 556 (5th Cir. 1969).7“Only a real party in 

interest has the capacity to bring a lawsuit.” See Tennyson v. ASCAP, 477 F. App'x 608, 610 (11th 

Cir. 2012) (citing Fed. R. Civ. P. 17). The purpose of Rule 17 “is to enable the defendant to avail 

himself of evidence and defenses that the defendant has against the real party in interest, and to 

assure him finality of the judgment, and that he will be protected against another suit brought by 

the real party at interest on the same matter.” Celanese Corp. of Am. v. John Clark Indus., 214 

F.2d 551, 556 (5th Cir. 1954).

Pursuant to maritime law, the personal representative of a decedent’s estate is the only real 

party in interest with standing to sue on behalf of the estate. See Ridley v. NCL (Bahamas) Ltd., 

824 F. Supp. 2d 1355, 1362–63 (11th Cir. 2010) (“It is clear that general maritime law and Florida 

law limit recovery for wrongful death to the personal representative.”); see also Fla. Stat. § 768.20 

(“The [wrongful death] action shall be brought by the decedent’s personal representative, who 

shall recover for the benefit of the decedent’s survivors and estate all damages... caused by the 

injury resulting in death.”). “[t]here is no individual right to recovery by an estate’s beneficiaries 

even where, as here, one of those beneficiaries is the former spouse of the decedent.” Ridley, 824 

F. Supp. 2d at 1363.

Here, Plaintiff alleges that she brings this action as the “Surviving Spouse” and identifies 

herself as “the wife of Jessie Vickers, deceased” rather than as the personal representative of the 

Estate of the Decedent. [DE 1, ¶1]. Accordingly, Plaintiff has failed to allege that she is the real 

party in interest with the capacity to bring suit on behalf of the Estate of Mr. Vickers, and, 

therefore, this suit should be dismissed.

7 Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in 

the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) 

(en banc).

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B. Plaintiff Has Not and Cannot Allege a Claim for Negligence

1. Plaintiff failed to allege facts to support her negligent failure to warn claim

“It is a settled principle of maritime law that a shipowner owes passengers the duty of 

exercising reasonable care under the circumstances.”8See Kermarec v. Compagnie Generale 

Transatlantique, 358 U.S. 625 (1959). This standard of care “requires, as a prerequisite to 

imposing liability, that the carrier have actual or constructive notice of the risk-creating condition.” 

See Keefe, 867 F.2d at 1322 (11th Cir. 1989). A cruise line must warn passengers only of those 

dangers that “the cruise line knows or reasonably should have known,” and “which are not apparent 

and obvious to the passenger.” See Smolnokar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 

1308, 1322–34 (S.D. Fla. 2011) (Jordan, J.). 

In Count I, Plaintiff speculates that Carnival failed to warn passengers before, during or after 

the conclusion of the cruise that they could be, may have been or were in fact exposed to COVID19 during their stay on Carnival’s ship, but Plaintiff fails to allege any underlying facts to establish 

that Carnival knew or should have known about the specific risk-creating condition. Here, before 

a pandemic occurred and based on incidents that happened on vessels thousands of miles away 

from the Ecstasy, Plaintiff speculates that “some passengers and/or crew which had sailed on the 

Ecstasy before the Vickers’ trip likely had COVID 19 a/k/a ‘corona virus’ and that there was a 

possibility that they could contract the virus while aboard its cruise ship.” [DE 1, ¶ 14] (emphasis 

added). Also, Plaintiff alleged the conclusion that Carnival, “through its agents, employees and/or 

personnel knew or had reason to know that some passengers and/or crew which had sailed on the 

Ecstasy before the Vickers’ trip likely had or were experiencing symptoms consistent with COVID 

8 Plaintiff’s Complaint also fails to allege the correct duty of care set forth in Kermarec v. 

Compagnie Generale Transatlantique, 358 U.S. 625 (1959). 

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19 a/k/a ‘corona virus’ before departing,” but no facts are alleged as to how Carnival knew or 

should have known of the illness other than two outbreaks on vessels owned by another company 

as far away as Japan and California. [DE 1, ¶ 11] (emphasis added). Finally, based on the two

outbreaks thousands of miles away, Plaintiff alleged Carnival should have known that crew or 

passengers “likely” had COVID-19 without any factual support. [DE 1, ¶ 23]. If allowed to stand, 

speculative allegations such as this would convert the cruise ship operator into an insurer of 

passenger health and safety. But courts have routinely rejected such speculative claims. See Isbell 

v. Carnival Corp., 462 F. Supp. 2d 1232, 1237 (S.D. Fla. 2006) (“Defendant is not the insurer of 

the safety of the passengers. Merely because an accident occurs, a carrier does not become liable 

to a passenger”). 

Here, Plaintiff’s allegations relate solely to vessels operated by other companies thousands of 

miles away without drawing any factual connection whatsoever to any knowledge that Carnival 

actually had or should have had that anyone on the Ecstasy had COVID-19 at a time when there

was no pandemic and before the CDC issued any order barring operations or even recommending 

social distancing. See Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1359 (11th Cir. 1990) 

(rejecting argument that “Carnival should have known that there was a danger of passenger injury 

because it was the owner and operator of the ship,” and that “notice of the defect can be imputed 

to Carnival inasmuch as it created the threshold and maintained it”); Galentine v. Holland Am. 

Line–Westours, Inc., 333 F. Supp. 2d 991, 996 (W.D. Wash. 2004) (Pechman, J.) (rejecting 

argument that cruise line should be held liable absent actual or constructive notice “if it created an 

unsafe or foreseeably hazardous condition”); see, also Harding v. NCL (Bahamas) Ltd., 90 F. 

Supp. 3d 1305, 1307–08 (S.D. Fla. 2015) (dismissing Plaintiff’s complaint as Plaintiff failed to 

allege sufficient facts regarding notice beyond conclusory statements). Plaintiff’s claims are 

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predicted on such impermissible general foreseeability allegations and cannot proceed as alleged 

because such allegations would open the door to litigation against every business whose customers 

may have come into contact with the disease even though they operated consistent with public 

health mandates in effect at the time. 

In Koens v. Royal Caribbean Cruises, Ltd., the court dismissed the plaintiff's negligence claim 

because he failed to assert allegations establishing that the cruise line knew or should have known 

of dangerous conditions on the specific tour during which he was injured. 774 F. Supp. 2d 1215, 

1219 (S.D. Fla. 2011). Instead, Koens merely alleged the cruise line had actual knowledge about 

the “rising crime rate in Nassau,” and as support, alleged that a group of the same cruise line’s 

passengers were similarly assaulted at gunpoint one month prior to his own assault, during an 

excursion that the same cruise line sponsored. Id. at 1220. The court, however, found that such 

allegations were insufficient to trigger a duty. Id. The court further ruled that without duty there 

can be no breach and Koens had failed to state a cause of action for negligence. Id.

Broad, conclusory allegations such as those in the Complaint without no underlying factual 

allegations based on a theory of the general foreseeability of the potential existence of a virus that 

someone may have had without any supporting facts is quantumly insufficient to state a claim for 

relief and would expand liability exponentially if allowed to stand. See Harding, 90 F. Supp. 3d 

at 1307–08. 

2. Plaintiff Failed to Allege Causation

Plaintiff’s negligence claim must also be dismissed for failure to allege causation. The 

Complaint is vague, conclusory, and lacks facts that would indicate how the Decedent became ill 

from COVID-19 other than through the sheer speculation of Plaintiff. See e.g., [DE 1, ¶¶ 11, 26-

27]. Plaintiff simply alleges that a passenger or crew member who had sailed on a prior voyage 

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“likely had or were experiencing symptoms consistent with COVID-19” before departing and since 

the Decedent became ill shortly after his cruise, the Decedent “could not have contracted COVID 

19 from any other source” because he sheltered in place immediately after the cruise. Id.

Additionally, aside from Plaintiff’s sheer supposition about how the Decedent contracted COVID19, Plaintiff alleges proximate causation in a purely conclusory manner: “Plaintiff sustained 

injuries and damages as a direct and proximate cause of Defendant’s negligence” [DE 1, ¶¶ 27. 

38, 42]. Assuming for purposes of this motion that Decedent did, in fact, become ill shortly after 

the cruise, COVID-19 could have been contracted at any time prior to the cruise, during an outing 

ashore or after the cruise. There is simply nothing alleged in the Complaint, nor can Plaintiff allege, 

that the Decedent’s COVID-19 was caused by Carnival when it could have been contracted in any 

number of ways other than through any negligence on the part of Carnival.

According to the CDC website, a study “reported that 97.5% of persons with COVID-19 who 

develop symptoms will do so within 11.5 days of SARS-CoV-2 infection.”9 Given that the cruise 

lasted four days, Plaintiff could have contracted the virus in Georgia before the trip, on the way to 

the cruise, in the Bahamas while the Decedent was off the vessel or on the way back home. Rank 

speculation and conclusory allegations require dismissal. Iqbal, 556 U.S. at 678; see also Oxford 

Asset Mgmt., Ltd., v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (“conclusory allegations, 

unwarranted deductions of fact, or legal conclusions masquerading as facts will not prevent 

dismissal.”); Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016) (plaintiff’s 

9

See Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease 

(COVID-19), Coronavirus Disease 2019 (COVID-19), CTRS FOR DISEASE CONTROL &

PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html (last updated June 30, 2020) (citing Lauer SA, Grantz KH, Bi Q, et al., The 

Incubation Period of Coronavirus Disease 2019 (COVID-19) From Publicly Reported Confirmed 

Cases: Estimation and Application, ANNALS OF INTERNAL MED., (Mar. 10, 2020), 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7081172/)).

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complaint dismissed because “it is evident that [plaintiff’s] Complaint rests on ‘“naked 

assertion[s]” devoid of ‘further factual enhancement.’” (quoting Iqbal, 556 U.S. at 678; Twombly, 

550 U.S. at 557)).

Rinker v. Carnival Corp., is an analogous case where a passenger who developed meningitis, 

bacteremia, and osteomyelitis while aboard a vessel, filed suit against the cruise line for negligence

and other claims and among the claims the cruise line moved to dismiss, was the negligence claim. 

753 F. Supp. 2d 1237, 1242 (S.D. Fla. 2010). The court dismissed the Complaint based on 

Plaintiff’s failure to allege proximate cause because the plaintiff did not allege any facts that 

demonstrate any alleged breaches of duty were the proximate cause of her illness. Id. at 124 

(nothing indicated how plaintiff was injured because of the failures alleged in the plaintiff’s 

amended complaint and therefore, the court ruled, the pleading failed to meet the requirements of

Iqbal and Twombly).

In Brown v. Oceania Cruise, Inc., the Court also dismissed a negligence claim because the 

complaint was lacking as to how the plaintiff incurred her alleged injury particularly where, as 

here, the illness and/or injuries could have been caused in a manner inconsistent with conduct for 

which the defendant could not be liable. 2017 WL 10379580, **3-4 (S.D. Fla. Nov. 20, 2017). 

Like the deficient negligence claim in Brown, Plaintiff summarily alleges proximate causation and 

speculates that the Decedent was injured and contracted COVID-19 as a result of the breaches 

alleged in the Complaint. 

The pleading here fails to provide any facts to plausibly tie causation to Defendant since 

Plaintiff could have contracted the illness any time prior to boarding or from presymptomatic or 

asymptomatic passengers, while the Decedent was ashore in the Bahamas or after the cruise. See 

supra, note 3-5. There are simply no facts alleged in the Complaint to tie Carnival’s alleged breach 

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of its duties to any injury suffered by the Decedent. How, when, and where does Plaintiff assert 

Decedent contracted COVID-19? The Complaint in this case is devoid of any such facts that could 

plausibly support that any alleged breach of duty by Carnival (as opposed to anyone else) that was 

the proximate cause of Decedent’s injury. Accordingly, Plaintiff has failed to plead a claim for 

negligence upon which relief can be granted, and Plaintiff’s Complaint should be dismissed with 

prejudice. 

C. The Death on the High Seas Act (“DOHSA”) Governs Plaintiff’s Claims 

As noted above, federal maritime law governs this case. Plaintiff alleges that the Decedent 

sustained injury during “a four (4) day cruise to the Bahamas.” [DE 1, ¶6]. As Plaintiff has alleged 

injury during a cruise in navigable waters, the Death on the High Seas Act (“DOHSA”) is the law 

to be applied in this action. DOHSA is the sole federal wrongful death statute under maritime law

for deaths which occur on or stem from injuries suffered on the high seas. Where DOHSA applies, 

it is the sole, exclusive remedy. See Perricone v. Carnival Corp., No. 15-20309-CV, 2016 WL 

1161214, at *5 (S.D. Fla. Mar. 24, 2016) (“Where an action for wrongful death exists under 

DOHSA, the statute provides the ‘exclusive remedy.’” (quoting Dooley v. Korean Air Lines Co., 

524 U.S. 116, 117 (1998))); Ridley, 824 F. Supp. 2d at 1361. The fact that Decedent’s death 

occurred after his and Plaintiff’s cruise had ended does not preclude DOHSA’s applicability to 

Plaintiff’s case. [DE 1, ¶28]. DOHSA applies to any wrongful death action where the injury 

resulting in death occurred on the high seas, irrespective of where the decedent is pronounced 

dead. See Balachander v. NCL (Bahamas) Ltd., 800 F. Supp. 2d 1196, 1200–01 (S.D. Fla. 2011). 

As DOHSA applies to Plaintiff’s claims, Plaintiff’s claims under Georgia law must be dismissed 

and Plaintiff’s damages must be limited to those available under DOHSA. 

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D. Plaintiff’s Vicarious Liability Claim Should Be Dismissed

First, Plaintiff’s vicarious liability fails to state a claim as it is premised on Plaintiff’s direct

negligence claim, which, as discussed above, fails to state a claim. As such, Plaintiff’s vicarious

liability claim also fails. See Gharfeh v. Carnival Corp., 309 F. Supp. 3d 1317, 1323 (S.D. Fla.

2018) (to sustain a vicarious liability claim “the underlying negligence claim must be adequately

asserted.”) (citing Rojas v. Carnival Corp., 93 F.Supp.3d 1305, 1311 (S.D. Fla. 2015)); Ceithaml

v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1355–57 (S.D. Fla. 2016) (dismissing the

plaintiff’s vicarious liability claim because plaintiff’s underlying negligence claim was

insufficiently pled).

Second, Carnival can only be held liable in negligence through the alleged acts of its 

employees, which renders Plaintiff’s claim for vicarious liability redundant and unnecessary. See

Giambra v. Wendy’s Int'l, Inc., No. 8:08-CV-2016-T-27EAJ, 2009 WL 1686677, at *2 (M.D. Fla. 

June 16, 2009) (dismissing a negligent supervision claim as “duplicative” of a respondeat superior

claim when both claims were based on the same facts of the alleged negligence claim); Shaw v. 

Pizza Hut of Am., Inc., No. 8:08-CV-27-T-24-EAJ, 2009 WL 1519881, at *1 (M.D. Fla. June 1, 

2009). Here, Plaintiff has not alleged any facts that would support a separate claim for vicarious 

liability. Accordingly, Count II should be dismissed with prejudice. 

E. Plaintiff’s Request For A Jury Trial Should be Stricken

Plaintiff has a requested a jury trial. [DE 1, at p.9]. However, as Plaintiff’s claims should be 

governed by DOHSA, Plaintiff would have no right to a trial by jury.

10 See Tallentire v. Offshore 

10 Carnival is cognizant of the representation in Leslie v. Carnival Corp., 22 So. 3d 561, 564–65

(Fla. 3d DCA 2008), that it would not oppose a jury trial in Federal matters where there is no 

diversity and where a party would be otherwise entitled to a jury trial if the matter had been brought 

in State court. However, where DOHSA applies, a passenger is not entitled to a jury trial whether 

it is brought in Federal or State court. 

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Logistics, 800 F.2d 1390, 1391 (5th Cir. 1986); LaCourse v. Def. Support Servs. LLC, No. 

3:16CV170-RV/CJK, 2018 WL 7342153, at *2 (N.D. Fla. Oct. 31, 2018), reconsideration denied,

No. 3:16CV170-RV/CJK, 2018 WL 7342150 (N.D. Fla. Dec. 4, 2018). Courts regularly deny 

plaintiffs’ requests for jury trials in cases where DOHSA applies. See Reistetter v. Royal 

Caribbean Cruises Ltd., No. 08-20462-CIV-SEITZ, 2008 WL 5397139, at *1 (S.D. Fla. Dec. 18, 

2008) (“Defendant Royal Carribean’s [sic] Motion to Strike Jury Demand is granted, and Count I 

[DOHSA] of the Amended Complaint shall be tried in admiralty without a jury.”)

The case of Lasky v. Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d 1309 (S.D. Fla. 2012), is 

instructive. There, the Court denied the plaintiff’s request for a jury trial because DOHSA does 

not convey such a right. Id. at 1313–14. The Court held that even though Plaintiff had only alleged 

diversity jurisdiction, as Plaintiff has in the instant case, she was not entitled to a jury trial because 

the court’s diversity jurisdiction was concurrent with its admiralty jurisdiction. Id. Specifically, 

the Court stated there is no right to a jury trial for claims governed by DOHSA where “the existence 

of ... diversity of citizenship, can lead to no different result, at least as to the wrongful death claims.

Diversity of citizenship creates only an additional basis for federal jurisdiction; it does not enlarge 

the parameters of the substantive remedy upon which a claim is based.” Id. at 1314. As DOHSA 

applies to the instant matter, Plaintiff’s jury trial demand must be stricken. 

F. Plaintiff’s Request for Attorney’s Fees Should be Stricken

“A party is not entitled to attorney’s fees in an admiralty case unless fees are statutorily or 

contractually authorized.” Coastal Fuels Mktg., Inc. v. Fla. Exp. Shipping Co., 207 F.3d 1247, 

1250 (11th Cir. 2000). Plaintiff has not alleged that any federal statute allows for attorney’s fees 

for the claims she brings in her Complaint, thus she is not entitled to them. See Doe v. Celebrity 

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Cruises, 145 F. Supp. 2d 1337, 1348 (S.D. Fla. 2001). Accordingly, the Plaintiff’s demand for 

attorney’s fees should be stricken.

G. Plaintiff’s Claim for Punitive Damages Should be Stricken

1. Punitive Damages are Not Available Under General Maritime Law

Plaintiff’s claim for punitive damages should be stricken based on the recent maritime 

decisions in The Dutra Group v. Batterton and Eslinger v. Celebrity Cruises, Inc. See The Dutra 

Group v. Batterton, 139 S.Ct. 2275, 2287 (2019); Eslinger. v. Celebrity Cruises, Inc., 772 F. App’x 

872 (11th Cir. 2019). “‘A motion to strike may be used to strike any part of the prayer for relief 

when the recovery sought is unavailable as a matter of law.’” Lopez v. Wachovia Mortg., No. 209-

CV-01510-JAM-DAD, 2009 WL 4505919, at *5 (E.D. Cal. Nov. 20, 2009) (quoting Bassett v. 

Ruggles et al., 2009 WL 2982895 (E.D. Cal. Sept.14, 2009)). 

In Batterton, the Supreme Court decided the issue of whether punitive damages can be awarded 

in an unseaworthiness claim.

11 See Batterton, 139 S.Ct. at 2283. After a thorough analysis of the 

overwhelming historical evidence suggesting punitive damages are not available for 

unseaworthiness claims, the Court ruled that it could not sanction such a novel remedy unless it is 

required, to maintain uniformity with Congress’s clearly expressed policies and considered the 

remedies available under Jones Act claims. Id. at 2284. Justice Alito noted that Miles v. Apex 

Marine Corp., 498 U.S. 19 (1990) established that the Court should look primarily to legislative 

enactments for policy guidance when exercising its inherent common-law authority over maritime 

and admiralty cases, while recognizing that such statutory remedies may be supplemented to 

11 A claim for unseaworthiness is a personal injury cause of action available to seaman, a class of 

claimants that are considered “wards of the Court.” enjoying special protection because of the 

unique circumstances surrounding their employment. See Kurtz v. C.I.R., 575 F.3d 1275, 1277 

(11th Cir. 2009). The Decedent in this matter was a passenger, yet Plaintiff seeks greater damages 

for personal injuries than that available to a ward of the Court. 

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“achieve the uniform vindication” of the policies served by the relevant statutes. Batterton, 139 

S.Ct. at 2287 (citing Miles, 498 U.S. at 27).

In Atlantic Sounding Co., Inc. v. Townsend, and other legal authorities pre-dating Batterton, 

Courts held punitive damages were available under the general maritime law provided that a 

plaintiff could make a showing of intentional conduct. See Atlantic Sounding, 557 U.S. 404, 424-

25, 129 S. Ct. 2561, 2574 (2009). Distinguishing the ruling in Atlantic Sounding, Justice Alito 

underscored that the holding in Atlantic Sounding was limited:

In Atlantic Sounding, we allowed recovery of punitive damages, but we justified 

our departure from the statutory remedial scheme based on the established history 

of awarding punitive damages for certain maritime torts, including maintenance 

and cure. 557 U.S. at 411–414, 129 S.Ct. 2561 (discussing cases of piracy and 

maintenance and cure awarding damages with punitive components). We were 

explicit that our decision represented a gloss on Miles rather than a departure from 

it. Atlantic Sounding, supra, at 420, 129 S.Ct. 2561 (“The reasoning of Miles

remains sound”). And we recognized the importance of viewing each claim in its 

proper historical context. “‘[R]emedies for negligence, unseaworthiness, and 

maintenance and cure have different origins and may on occasion call for 

application of slightly different principles and procedures.’” 557 U.S. at 423, 129 

S.Ct. 2561.

Batterton, 139 S.Ct. at 2283. The Court therefore ruled that punitive damages are not a traditional 

remedy for unseaworthiness and “[t]he rule of Miles—promoting uniformity in maritime law and 

deference to the policies expressed in the statutes governing maritime law—prevents us from 

recognizing a new entitlement to punitive damages where none previously existed.” Id. at 2287 

(“We hold that a plaintiff may not recover punitive damages on a claim of unseaworthiness”).

Eslinger v. Celebrity Cruises, Inc., was decided just four (4) days after Batterton. In Eslinger, 

a plaintiff appealed an order dismissing her claim for loss of consortium resulting from an injury 

her husband sustained while a passenger on a cruise ship, arguing that the district court erred in 

relying on Eleventh Circuit precedent foreclosing loss of consortium claims after the Supreme 

Court decided Atlantic Sounding. 772 F. App’x 872 (11th Cir. 2019). Eslinger, 772 F. App’x at 

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872. The Eleventh Circuit expressly stated that: “Our court has held that plaintiffs may not recover 

punitive damages, including loss of consortium damages, for personal injury claims under federal 

maritime law.” Id. at 872-73 (citing In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. on 

Sept. 22, 1993, 121 F.3d 1421, 1429 (11th Cir. 1997) and Lollie v. Brown Marine Serv., Inc., 995 

F.2d 1565, 1565 (11th Cir. 1993) (“[N]either the Jones Act nor general maritime law authorizes 

recovery for loss of society or consortium in personal injury cases.”)). “[N]othing in the Atlantic 

Sounding decision undermines our prior holdings.” Id. at 873. The Eleventh Circuit’s Eslinger

decision that punitive damages are not available for maritime personal injury cases is completely 

consistent with the Supreme Court’s ruling in Batterton that punitive damages are not available in 

maritime crew cases of unseaworthiness. See Batterton, 139 S.Ct. at 2275 (“The lack of punitive 

damages in traditional maritime law cases is practically dispositive.”).

In another recently decided case, the Court struck a punitive damages claim based on the 

holding in Eslinger. See Doe v. NCL (Bahamas) Ltd., No.19-cv-21486 (Altonaga, J), [ECF 45] 

(S.D. Fla., Aug. 29, 2019), attached herein as Exhibit 2. At the hearing on NCL’s motion to dismiss 

the punitive damages claim, the Court, stated that:

Judge’s Martin, Newsom, and Dubina wrote [in Eslinger] ‘Our Court has held that 

Plaintiffs may not recover punitive damages for personal injury claims under 

federal maritime law.’ That’s what the Plaintiff is attempting to do in this 

complaint. And I will follow Eslinger as I am required to. I am bound to follow 

Eleventh Circuit law. I don’t see any ambiguity in the sentence. I don't see any 

reservation or carveout.

See Doe, Transcript from hearing on Motion to Dismiss, No.19-cv-21486-CMA, (S.D. Fla., Aug. 

29, 2019) attached as Exhibit 3 at pp. 35:12-18. Therefore, based on the clear reasoning of 

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Batterton and the explicit holding in Eslinger, punitive damages are not an available remedy in 

personal injury actions under general maritime law following those decisions.

12

2. Punitive Damages are Not Recoverable Under DOHSA 

Moreover, punitive damages are non-pecuniary and are therefore prohibited under DOHSA. 

See Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302, 1319 (S.D. Fla. 2019), report and 

recommendation adopted, No. 18-20829-CIV, 2019 WL 2254962 (S.D. Fla. Mar. 21, 2019) 

(“because we have found that DOHSA governs the damages recoverable in this case, punitive 

damages are not recoverable as a matter of law.”) Courts consistently reject plaintiffs’ claims for 

punitive damages for claims governed by DOHSA. See Murphy v. Carnival Corp., 426 F. Supp. 

3d 1288, 1292 (S.D. Fla. 2019) (“the Court strikes any damages claims which are not recoverable 

under DOHSA, including damages for companionship and protection, mental pain and suffering 

on behalf of the deceased’s survivors, Mr. Murphy’s pre-death pain and suffering, and punitive

damages.”); Broberg v. Carnival Corp., 303 F. Supp. 3d 1313, 1318 (S.D. Fla. 2017); Blair v. NCL 

(Bahamas) Ltd., 212 F. Supp. 3d 1264, 1269 (S.D. Fla. 2016); Cubero v. Royal Caribbean Cruises 

Ltd., 2016 WL 4270216, at *4 (S.D. Fla. Aug. 15, 2016) (striking claim for punitive damages). 

Thus, even if punitive damages were available under general maritime law, they are precluded 

under DOHSA, and therefore Plaintiff is not entitled to them. 

3. Plaintiff is Not Entitled to Punitive Damages Even Under a Pre--

Batterton/Eslinger Analysis

Even under pre-Batterton/Eslinger analysis, Plaintiff’s punitive damages allegations are 

12 Carnival acknowledges that another district court in the Eleventh Circuit has recently come to 

the opposite conclusion of the Court in Doe v. NCL (Bahamas) Ltd. See Doe v. Carnival 

Corporation, 2020 WL 3772102, *5-6 (S.D. Fla. June 26, 2020) (Ungaro, J.). However, that the 

Eslinger holding unequivocally states punitive damages are not allowable and cannot be 

disregarded. 

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insufficient to state a claim for relief. Prior to those cases, Courts required a plausible finding of 

intentional conduct necessary to sustain a punitive damages award. See Kennedy, 385 F.Supp.3d 

at 1328; Bodner v. Royal Caribbean Cruises, Ltd., 2018 WL 4047119, *4-5 (S.D. Fla. May 8, 

2018) (“the Eleventh Circuit [has] concluded that [punitive damages] were only available in 

‘exceptional circumstances,’ such as ‘those very rare situations of intentional wrongdoing.’”) 

(quoting In re Amtrak, 121 F.3d at 1429). 

Here, Plaintiff alleges, “Defendant’s conduct, acts and/or omissions was intentional, willful, 

wanton, malicious, fraudulent, in bad faith and indicate an entire want of care which would raise 

the presumption of conscious indifference to consequences, entitling Plaintiff to recovery for 

punitive damages.” [DE 1, ¶47]. However, there are no facts contained within the Complaint that 

establish any intentional misconduct by Carnival. Thus, there are no facts in Plaintiff’s Complaint 

that Carnival acted intentionally with actual knowledge that its conduct would cause harm to its 

passengers. Without any such facts, Plaintiff’s claim for punitive damages fails, even under a preBatterton/Eslinger analysis. Accordingly, Plaintiff’s claims for punitive damages should be 

stricken.

WHEREFORE, Carnival respectfully requests this Honorable Court enter an Order dismissing 

Plaintiff’s Complaint in its entirety with prejudice, and for all other relief this Court deems just 

and proper. 

Dated: August 14, 2020

Miami, Florida

Respectfully submitted,

FOREMAN FRIEDMAN, PA

BY: /s/_Noah D. Silverman____________

Jeffrey E. Foreman, Esq. (FBN 0240310)

jforeman@fflegal.com 

Noah Silverman, Esq. (FBN 401277)

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

nsilverman@fflegal.com

Foreman Friedman, P.A.

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, Florida 33131

Tel: (305) 358-6555

Fax: (305) 374-9077

Attorneys for the Defendant

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on August 14, 2020, we electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. We also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the attached Service 

List in the manner specified, either via transmission of Notices of Electronic Filing generated by 

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized 

to receive electronic Notices of Electronic Filing.

By: _Noah D. Silverman ______

Noah Silverman, Esq.

SERVICE LIST

Ashleigh R. Madison

southeastlaw@gmail.com

Southeast Law, LLC 

1703 Abercorn Street 

Savannah, Georgia 31401 

912.662.6612

Attorneys for Plaintiffs

Franklin D. Hayes, Esq. 

fhayeslaw@yahoo.com

P.O. Box 2377 

Douglas, GA 31533

Attorneys for Plaintiffs

Jeffrey E. Foreman, Esq. 

jforeman@fflegal.com 

kfehr@fflegal.com

Noah D. Silverman, Esq.

nsilverman@fflegal.com 

pcampo@fflegal.com 

Foreman Friedman, PA

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, FL 33131

Phone: 305-358-6555 

Fax: 305-374-9077

Attorneys for Defendant

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