United States District Court 

for the 

Southern District of Florida 

Sabrina Mclean, Plaintiff,

v. 

Carnival Corporation, Defendant. 

)

) 

) 

) 

) 

Civil Action No. 22-23187-Civ-Scola 

Order 

This matter is before the Court on the Defendant’s motion to dismiss the 

Plaintiff’s amended complaint. (ECF No. 14.) The Plaintiff filed a response to the 

motion (ECF No. 20), and the Defendant filed a reply memorandum in support of 

its motion (ECF No. 25). After careful consideration of the briefing, the record, 

and the relevant legal authorities, the Court denies the Defendant’s motion. (ECF 

No. 14.) 

1. Background 

In December 2021, Plaintiff Sabrina Mclean was a passenger onboard the 

Carnival M/S Legend. (Am. Compl., ¶¶ 5, 13, ECF No. 13.) While the ship was 

docked in the Bahamas, the Plaintiff alleges that she tripped, fell, and was 

injured walking up the gangway to the ship to board after returning from a shore 

excursion. (Id. ¶¶ 9-11.) The Plaintiff pleads that she tripped and fell because the 

Carnival employees who were operating the gangway “improperly aligned the 

gangway with the ship so that a small lip emerged at the top end of the gangway 

(the end that touches the ship).” (Id. ¶ 8.) This, the Plaintiff asserts, “constituted a 

tripping hazard” and the Plaintiff did, in fact, trip on the “raised lip.” (Id. ¶¶ 8, 

10.) The Plaintiff alleges that she suffered “bodily injury and resulting pain” along 

with other injuries as a result of tripping over the raised lip at the end of the 

gangway. (Id. ¶ 11.) 

The Defendant, Carnival Corporation (“Carnival”), now moves to dismiss the 

amended complaint on three grounds. First, Carnival argues, the amended 

complaint is a shotgun pleading because the Plaintiff mislabels her two vicarious 

liability claims as direct negligence claims. (Mot. to Dismiss, at 4-5, ECF No. 14.) 

Second, Carnival asserts that the Plaintiff was required to plead that Carnival had 

notice of the alleged tripping hazard because the Plaintiff improperly pleads her 

claims as vicarious liability when they must be direct negligence claims. (Id. at 5-

6.) The Plaintiff responds in opposition to both points, arguing that the amended 

complaint does not fit any of the four categories of shotgun pleadings and that 

she sufficiently pleads claims for vicarious liability. (Resp. at 3-4.) 

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2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as 

true, construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain “a 

short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not 

require detailed factual allegations, but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quotation omitted). 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). 

“A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not 

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility 

that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of 

a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, a pleading that offers mere “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action” will not survive dismissal. See 

Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from 

the hyper-technical, code-pleading regime of a prior era, but it does not unlock 

the doors of discovery for a plaintiff armed with nothing more than conclusions.” 

Iqbal, 556 U.S. at 679. 

Yet, where the allegations “possess enough heft” to suggest a plausible 

entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he 

standard ‘simply calls for enough fact to raise a reasonable expectation that 

discovery will reveal evidence’ of the required element.” Rivell v. Private Health 

Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of 

those facts is improbable, and ‘that a recovery is very remote and unlikely.’” 

Twombly, 550 U.S. at 556.

3. Analysis

A. The Amended Complaint Is Not a Shotgun Pleading

First, the Defendant argues that the amended complaint is a shotgun 

pleading “because both counts allege a hybrid cause of action resting somewhere 

between direct negligence and vicarious liability.” (Resp. at 4.) This is not one of 

the categories of shotgun pleadings that the Eleventh Circuit has identified, and 

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as the Court will address further below, the amended complaint sufficiently 

pleads causes of action for vicarious liability. 

The Eleventh Circuit recognizes four types of shotgun pleadings: (1) 

“complaint[s] containing multiple counts where each count adopts the allegations 

of all preceding counts, causing each successive count to carry all that came 

before and the last count to be a combination of the entire complaint”; (2) 

complaints that are “replete with conclusory, vague, and immaterial facts not 

obviously connected to any particular cause of action”; (3) complaints that do not 

separate “into a different count each cause of action or claim for relief”; and (4) 

complaints that assert “multiple claims against multiple defendants without 

specifying which of the defendants are responsible for which acts or omissions, or 

which of the defendants the claim is brought against.” Weiland v. Palm Beach 

Cnty. Sheriff's Off., 792 F.3d 1313, 1321-23 (11th Cir. 2015). 

The amended complaint fits none of those categories. Carnival’s primary 

concern—that the titles of the two counts imply that the Plaintiff brings claims for 

direct negligence, while the bodies of the two counts suggest that the Plaintiff is 

at least in part pursuing claims for vicarious liability—does not fall within the 

ambit of shotgun pleadings. (Mot. at 4-5); Weiland, 792 F.3d at 1321-23. While 

the Plaintiff’s mistitling of the two vicarious liability counts as claims for 

“negligence” on its own could be confusing, the supporting paragraphs of both 

counts make clear that the Plaintiff pleads claims for vicarious liability. The 

amended complaint is not a shotgun pleading, and the Court will not dismiss it 

as such. 

B. The Amended Complaint Pleads Sufficient Facts to Support Claims for 

Vicarious Liability

The Defendant next asserts that the amended complaint attempts to plead 

what are in reality claims for direct negligence against Carnival as the shipowner 

as claims for vicarious liability instead. (Mot. at 5-6.) The Defendant relies heavily 

on a recent Eleventh Circuit case, Holland v. Carnival. 50 F.4th 1088 (11th Cir. 

2022). Accordingly, the Defendant argues, the Plaintiff must plead that Carnival 

had notice of the alleged dangerous conditions, but the Plaintiff makes no such 

allegations. (Mot. at 5-6.)

In response, the Plaintiff asserts that the facts of this case are closer to 

another recent Eleventh Circuit case, Yusko v. NCL (Bahamas) Limited. 4 F.4th 

1164 (11th Cir. 2021). The Plaintiff argues that because it alleges that certain 

employees of Carnival’s engaged in a specific negligent act, and Carnival is 

vicariously liable for the injuries caused by that act, the Plaintiff did not need to 

plead notice. (Resp. at 5.) 

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In Holland, the Eleventh Circuit held that, where a plaintiff brought 

allegations of vicarious liability against a defendant (there, like here, Carnival), 

claims for vicarious liability did not withstand scrutiny and must be considered 

claims for the shipowner’s direct negligence where there was “nothing in [the 

plaintiff’s] complaint that would lead one to understand his claims as seeking to 

impose liability on an otherwise nonfaulty Carnival for an employee’s negligence.” 

Holland, 50 F.4th at 1094. There, the plaintiff based his complaint on allegations 

that “Carnival ‘was vicariously liable for any negligence or failure to exercise 

reasonable care by its crewmembers’ to maintain a hazardfree [sic] stairway or to 

warn of any hazardous condition on the stairway.” Id. Crucially, the Eleventh 

Circuit observed that the plaintiff “did not identify any specific crewmember 

whose negligence caused [his] injury.” Id. 

In Yusko, however, the Eleventh Circuit held that the requirement to plead 

a shipowner’s notice in maritime negligence cases “does not—and was never 

meant to—apply to maritime negligence claims proceeding under a theory of 

vicarious liability.” Yusko, 4 F.4th at 1167. The plaintiff in Yusko alleged that she 

was injured when a ship’s crewmember (a dance instructor) allowed her to fall 

and hit her head during a period of dancing instruction. Id. at 1166. Because the 

plaintiff there was able to identify a specific crewmember whose negligent actions 

harmed her, the court agreed that she sufficiently stated a claim for vicarious 

liability. 

The allegations in the amended complaint here are much closer to those in 

Yusko than in Holland. The Plaintiff identifies here a specific action by crew 

members of Carnival’s—“misaligning the gangway”—that allegedly caused her 

injury. (Am. Compl. ¶¶ 7-8, 16-17.) While the Plaintiff does not specifically name 

the crewmembers, there is no requirement in the law that she do so, and it would 

seem fundamentally unfair to require the Plaintiff to remember the names of each 

of the crewmembers involved in the incident simply to file a complaint. There 

were, undoubtedly, specific crewmembers involved in the incident that the 

Plaintiff alleges. The Plaintiff’s allegations are not general allegations of a failure 

to maintain a safe premises. See Yusko, 4 F.4th at 1167. These specific 

allegations are sufficient to plead a claim for vicarious liability rather than 

Carnival’s direct negligence. See id. 

Finally, the Court briefly observes that the Plaintiff has pleaded sufficient 

facts to support her claims for vicarious liability. Vicarious liability requires a 

showing of negligence by an employee of the defendant. Holland, 50 F.4th at 

1094. In claims for vicarious liability, “a shipowner’s duty to a plaintiff is not 

relevant.” Id. Rather, “the principle of vicarious liability allows an otherwise nonfaulty employer to be held liable for the negligent acts of that employee acting 

within the scope of employment.” Id. (cleaned up.) 

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The Plaintiff pleads sufficient facts to make a claim for vicarious liability. 

First, the Plaintiff pleads that certain employees of Carnival’s “misaligned the 

gangway” that she was to use to board the ship. (Am. Compl. ¶¶ 7-8, 16-17.) And 

she pleads that those employees were acting within the scope of their 

employment. (Id. ¶¶ 8, 17.) Those facts alone are sufficient to support that (1) the 

employees acted negligently and (2) Carnival may be vicariously liable for its 

employees’ negligent actions. Yusko, 4 F.4th at 1167. 

Although the Plaintiff puts forward an incorrect legal theory for a claim of 

vicarious liability in both counts—a defendant is not negligent based on the acts 

of its employees, but rather is vicariously liable for the negligent acts of its 

employees—the Plaintiff nonetheless pleads sufficient facts to support claims for 

vicarious liability in both counts. The amended complaint does not provide 

sufficient allegations to support claims of direct negligence against Carnival, and 

the Plaintiff specifically alleges that she does not intend to bring such claims. 

(Am. Compl. ¶¶ 8 n.2, 17 n.3). Accordingly, the amended complaint “possesses 

enough heft” to suggest a plausible entitlement to relief for claims of vicarious 

liability. See Twombly, 550 U.S. at 557. The Court therefore denies the 

Defendant’s motion to dismiss the amended complaint. 

4. Conclusion

For the reasons stated above, the Court denies Defendant Carnival’s 

motion to dismiss the amended complaint. (ECF No. 14.) 

Done and ordered in Miami, Florida, on January 23, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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