[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-10562

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D.C. Docket No. 1:17-cv-23575-JLK

NIKKI MCINTOSH, et al.,

 Plaintiffs - Appellants,

versus

ROYAL CARIBBEAN CRUISES, LTD.,

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

 (July 27, 2021)

Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.

JORDAN, Circuit Judge: 

A “cruise to nowhere” usually involves a ship sailing into international waters 

for several days without any intermediate port calls. On such a cruise, it’s 

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supposedly the journey, and not the destination, that matters. This maritime 

negligence case involves a different type of “cruise to nowhere”—one that never 

departed. The Liberty of the Seas, owned by Royal Caribbean Cruises, was 

scheduled to sail from Galveston, Texas, on August 27, 2017. But Hurricane 

Harvey—a Category 4 storm that eventually made landfall in Texas and Louisiana—

had other ideas, and Royal Caribbean cancelled the cruise on the date of its scheduled 

departure and offered refunds to the would-be passengers. 

One of those passengers, Nikki McIntosh filed, on behalf of other similarly 

situated passengers, a class-action complaint against Royal Caribbean on several tort 

theories, including negligence, intentional infliction of emotional distress, and 

negligent infliction of emotional distress. She alleged that Royal Caribbean canceled 

the cruise and offered refunds only on the day the Liberty of the Seas was set to sail. 

Because the ticket contracts provided that no refunds would be given for passenger 

cancelations within 14 days of the voyage, and because Royal Caribbean repeatedly 

told passengers that they would lose their entire payments for the cruise if they 

canceled, the plaintiffs claimed that they were forced to travel to Galveston and 

nearby areas (like Houston) as Hurricane Harvey approached. She alleged that, 

while in Texas, they were forced to endure hurricane-force conditions, and suffered

physical and emotional injuries.

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In a series of orders, the district court ruled that the case could not proceed as 

a class action due to a class-action waiver in the passengers’ ticket contracts; that the 

complaint failed to plead damages sufficient to satisfy the amount-in-controversy 

requirement for diversity jurisdiction under 28 U.S.C. § 1332; that the plaintiffs had

not established maritime jurisdiction under 28 U.S.C. § 1333(1); and that the claims 

for intentional and negligent infliction of emotional distress failed as a matter of law. 

After the district court ruled that the case could not proceed as a class action, over 

100 plaintiffs filed a joint amended complaint asserting individual claims. Based 

upon these rulings, the court dismissed the plaintiffs’ second amended complaint 

with prejudice. 

The plaintiffs now appeal, challenging the district court’s jurisdictional and 

merits rulings. 

I

We exercise plenary review to determine whether the district court had 

subject-matter jurisdiction. See, e.g., Romero v. Drummond Co., Inc., 552 F.3d 

1303, 1313 (11th Cir. 2008).

II

The district court, acting sua sponte, ruled that the plaintiffs could not 

aggregate their emotional distress claims to satisfy the $75,000 amount-incontroversy requirement for diversity jurisdiction under 28 U.S.C. § 1332. The court 

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reasoned that the plaintiffs were not seeking to enforce rights in which they had a 

common and undivided interest. The court also summarily stated that the plaintiffs’ 

claims did not arise under federal maritime law so as to provide for jurisdiction under 

28 U.S.C. § 1333(1). We consider each of these rulings below.

A

In ruling that diversity jurisdiction was lacking, the district court committed 

two errors, one procedural and one substantive. Each one provides an independent 

basis for reversal.

First, the district court failed to give the plaintiffs notice of its intent to sua 

sponte address the matter of diversity jurisdiction. A federal court has an 

independent duty to ensure that it has subject-matter jurisdiction. See, e.g., Arbaugh 

v. Y&H Corp., 546 U.S. 500, 514 (2006). And that means that it can take up the 

issue of such jurisdiction on its own. See Morrison v. Allstate Indem. Co., 228 F.3d 

1255, 1261 (11th Cir. 2000). But when it does so, it must give the parties notice and 

an opportunity to be heard. Its failure to do so here, therefore, was error. See Day 

v. McDonough, 547 U.S. 198, 210 (2006) (“Of course, before acting on its own 

initiative, a court must accord the parties fair notice and an opportunity to present 

their positions.”) (citation omitted); Lipofsky v. New York State Workers Comp. Bd., 

861 F.2d 1257, 1258 (11th Cir. 1988) (holding that if a court raises on its own the 

issue of venue or personal jurisdiction, it “may not dismiss without first giving the 

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parties an opportunity to present their views on the issue”) (citation omitted); 

Republic Nat’l Bank of Dallas, et al. v. Crippen, 224 F.2d 565, 566 (5th Cir. 1955)

(explaining that the denial of the right to be heard is a violation “of due process 

which is never harmless error”).

Second, putting aside the aggregation of damages issue, the district court 

failed to consider whether any individual plaintiff had satisfied the $75,000 amountin-controversy requirement. See Exxon Mobil Corp. v. Allapattah Serv., Inc., 545 

U.S. 546, 549.

When a court conducts a facial review of a complaint to determine whether it 

has diversity jurisdiction, it must accept the plaintiff’s factual allegations. See 

Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). And, taking 

those factual allegations as true, the court can dismiss only if it is convinced “to a 

legal certainty” that the claims of the plaintiff in question will not exceed $75,000

(the current jurisdictional threshold). See Hunt v. Washington State Apple Advert. 

Comm’n, 432 U.S. 333, 346 (1977); Horton v. Liberty Mutual Ins. Co., 367 U.S. 

348, 354 (1961); Fastcase, Inc. v. Lawriter, LLC, 907 F.3d 1335, 1342 (11th Cir. 

2018); Deen v. Egleston, 597 F.3d 1223, 1228 (11th Cir. 2010).

But where, as here, a plaintiff “pleads an unspecified amount of damages, 

[she] bears the burden of proving by a preponderance of the evidence that the claim 

on which jurisdiction is based exceeds the jurisdictional minimum. This additional 

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requirement is ‘warranted because there is simply no estimate of damages to which 

a court can defer.’” Fastcase, 907 F.3d at 1342 (citation omitted). Because the 

district court acted sua sponte, it did not give the plaintiffs an opportunity to satisfy 

their burden. Nevertheless, based on our review of the record, we are convinced 

that at least some of the plaintiffs sufficiently pled damages over $75,000. 

The plaintiffs alleged that, as a result of Royal Caribbean’s delay in canceling 

the cruise and offering refunds, they had to travel to Galveston and nearby areas in 

Texas that were in a state of emergency due to Hurricane Harvey. They had to spend 

days in those locations trapped by a “devastating storm,” often without power, and 

with limited food and water. And, as a result, they were “injured about their body 

and extremities,” sustaining physical pain and suffering; mental and emotional 

anguish; temporary, permanent, and/or physical disability; impairment; and 

disfigurement. They also incurred medical expenses for the care and treatment of 

their injuries.

These alleged injuries and expenses—accepted as true—are sufficient to plead 

damages that exceed the $75,000 amount-in-controversy requirement. See, e.g.,

Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 809 (7th Cir. 2017) (claimed 

injuries and damages caused by the explosion of a shower glass door in a hotel room 

exceeded the $75,000 amount-in-controversy requirement, even though the plaintiff 

recovered only $12,000, because at the time of filing, she brought claims in good 

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faith for compensatory and punitive damages exceeding $150,000). And if there 

were any doubt, it is erased by the plaintiffs’ individual requests for punitive 

damages. See, e.g., Holley Equip. Co. v. Credit Alliance Corp., 821 F.2d 1531, 1535 

(11th Cir. 1987) (“When determining the jurisdictional amount in diversity cases, 

punitive damages must be considered.”).

1

That does not mean, however, that diversity jurisdiction exists. Alienage 

diversity under 28 U.S.C. § 1332(a)(2) “must be complete,” such that “an alien on 

both sides of a dispute will defeat jurisdiction.” Caron v. NCL (Bahamas) Ltd., 910 

F.3d 1359, 1364 (11th Cir. 2018). Based on this principle, we held in Caron that 

§ 1332(a)(2) “does not grant jurisdiction over a suit between a corporation 

incorporated solely in a foreign state and another alien, regardless of the 

corporation’s principal place of business.” Id. at 1365. Here it appears from our 

review of the record that Royal Caribbean is a citizen of Liberia, where it is 

incorporated, and that at least some of the plaintiffs are residents of other countries 

(e.g., Canada, Mexico, and the Philippines). On remand, therefore, the district court 

will need to address whether there is complete alienage diversity.

1

Because Royal Caribbean does not raise the issue, we do not consider whether all of the plaintiffs 

could collectively allege that they suffered the same injuries. See United States v. Seneneng-Smith, 

140 S. Ct. 1575, 1579 (2020) (explaining the principle of party presentation). If Royal Caribbean 

suspects that some or all of the plaintiffs are exaggerating or misstating their alleged injuries, it

can take discovery and file appropriate Rule 12(b)(1) motions mounting a factual attack on the 

allegations.

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We add one more observation. The district court dismissed the plaintiffs’ 

complaint with prejudice for lack of subject-matter jurisdiction. That was incorrect. 

If subject-matter jurisdiction does not exist, dismissal must be without prejudice. 

See Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 

(11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is not a 

judgment on the merits and is entered without prejudice.”). And if there was no 

subject-matter jurisdiction, the court should have vacated its rulings on the merits of 

the plaintiffs’ claims (unless it was going to issue alternative holdings on the merits 

for purposes of appeal in case diversity jurisdiction existed).

B

On remand, the district court should also consider whether there is maritime 

jurisdiction. In one of its orders, the district court said that maritime law applied to 

the plaintiffs’ claims. See D.E. 24 at 3. But in a later order, the district court 

summarily stated that the plaintiffs had not alleged any facts demonstrating federalquestion (i.e., maritime) jurisdiction. See D.E. 48 at 4. 

Congress has given the federal courts original jurisdiction in “[a]ny civil case 

of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies 

to which they are otherwise entitled.” 28 U.S.C. § 1333(1). The plaintiffs alleged 

that, in the event diversity jurisdiction did not exist as to some or all of them, the 

case was “brought under the admiralty and maritime jurisdiction” of the district 

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court, and that the claims asserted “ar[ose] under” the general maritime law of the 

United States. See Second Am. Compl., D.E. 30, at ¶¶ 81, 82, 84.

We express no view on whether the torts alleged by the plaintiffs arise under 

or are governed by federal maritime law. On remand, even though diversity 

jurisdiction may exist as to some or all of the plaintiffs, the district court will need 

to address whether any of their claims arise under federal maritime law because the 

elements of a tort can differ under maritime law and state law. 

In determining whether federal maritime law governs any of the plaintiffs’ 

claims, the district court will have to apply the location/connection test articulated 

by the Supreme Court in cases like Jerome B. Grubart, Inc. v. Great Lakes Dredge 

& Dock Co., 513 U.S. 527, 534 (1995) (“[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 maritime activity.”). Generally 

speaking, the “locality prong of the test for admiralty jurisdiction is satisfied if the 

incident occurred on ‘navigable waters’ or ‘the injury suffered on land was caused 

by a vessel on navigable waters,’” while the connection prong “requires two 

determinations: (a) whether the incident has a potentially disruptive impact on 

maritime commerce; and (b) whether the activity shows a substantial relationship to 

a traditional maritime activity.” 1 Thomas Schoenbaum, Admiralty and Maritime 

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Law § 3:5 (6th ed. & Nov. 2020 update). See also 1 Steven F. Friedell, Benedict on 

Admiralty § 171 (7th rev. ed. & Dec. 2020 supp.).

We recognized a claim for negligent infliction of emotional distress under 

federal maritime law in Chaparro v. Carnival Corp., 693 F.3d 1333, 1337–38 (11th 

Cir. 2012), but that case was factually different. Chaparro involved cruise ship 

passengers on a shore excursion who were trapped on a bus and witnessed a fatal 

shooting near a beach. The plaintiffs here never embarked on their cruise. The 

district court will therefore have to determine whether Chaparro extends to the 

circumstances alleged here under the Great Lakes location/connection test. Cf. 

Archawski v. Hanioti, 350 U.S. 532, 533 (1956) (allegation that a ship owner 

accepted money to take passengers on a trip, and then abandoned the voyage, “stated 

a claim for breach of a maritime contract”); Wallis v. Princess Cruises, Inc., 306 

F.3d 827, 840–41 (9th Cir. 2002) (stating, in a case involving on-board activity, that 

“[a] cruise line’s treatment of paying passengers clearly has potential to disrupt 

commercial activity, and certainly has substantial relationship to traditional maritime 

activity”).2

2 In a factually similar case, we concluded in an unpublished decision that there was maritime 

jurisdiction, but we did not explain our conclusion. See Heinen v. Royal Caribbean Cruises LTD., 

806 F. App’x 847, 849 n.1 (11th Cir. 2020). We therefore do not view Heinen as helpful or 

persuasive. 

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Should the district court conclude that there is maritime jurisdiction, it will 

need to apply the “zone of interest” test we adopted in Chaparro to the negligent 

infliction of emotional distress claim. That test—which includes an “impact rule”—

also “allows recovery if a plaintiff is ‘placed in immediate risk of physical harm by 

[the defendant’s negligent] conduct.’” Chaparro, 693 F.3d at 1337–38 (alteration 

in bracketed material) (quoting Stacy v. Rederiet Otto Danielsen, A.S., 609 F.3d 

1033, 1035 (9th Cir. 2010)).3

 

III

We reverse the dismissal of the plaintiffs’ complaint for lack of subject-matter 

jurisdiction, and remand for further proceedings consistent with this opinion. 

Because of the uncertainty over jurisdiction, we do not address the class action 

waiver or the plaintiffs’ claims for intentional infliction of emotional distress and 

negligent infliction of emotional distress. 

REVERSED AND REMANDED. 

3 Some federal courts have also recognized a claim for intentional infliction of emotional distress 

under maritime law. See, e.g., Wallis, 306 F.3d at 841–42; Sangha v. Navig8 Ship Mgmt. PTE 

Ltd., 440 F. Supp. 3d 1286, 1300–01 (S.D. Ala. 2020); Broberg v. Carnival Corp., 303 F. Supp.

3d 1313, 1317 (S.D. Fla. 2017). These courts have generally adopted, as the federal maritime rule, 

the standard set forth in § 46 (and its comment d) of the Restatement (Second) of Torts (1965). 

See, e.g., Wallis, 306 F.3d at 841–42. That standard is the same one used by Florida courts to 

evaluate claims of intentional infliction of emotional distress. See Metropolitan Life Ins. Co. v. 

McCarson, 467 So.2d 277, 278–79 (Fla. 1985). 

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