UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-22853-BLOOM/Otazo-Reyes

CHARLOTTE SMITH, 

Plaintiff, 

v. 

CARNIVAL CORPORATION & PLC, 

Defendant. 

________________________________/ 

ORDER ON MOTION TO DISMISS 

THIS CAUSE is before the Court upon Defendant Carnival Corporation’s Motion to 

Dismiss Plaintiff’s Complaint, ECF No. [7] (“Motion”). Plaintiff Charlotte Smith filed a Response 

in Opposition, ECF No. [9] (“Response”), to which Defendant filed a Reply, ECF No. [10] 

(“Reply”). The Court has carefully reviewed the Motion, the record in this case, the applicable 

law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted. 

I. BACKGROUND

On September 8, 2022, Plaintiff initiated this action against Defendant, asserting nine 

counts in the Complaint: Negligent Failure to Inspect (“Count I”); Negligent Failure to Maintain 

(“Count II”); Negligent Failure to Remedy (“Count III”); Negligent Failure to Warn of Dangerous 

Condition (“Count IV”); Negligent Design, Installation, and/or Approval of the Subject Area and 

the Vicinity (“Count V”); Negligence for the Acts of Carnival’s Crew, Staff, Employees, and/or 

Agents, Based on Vicarious Liability (“Count VI”); Vicarious Liability Against Carnival for the 

Negligence of the Ship’s Medical Staff (“Count VII”); Apparent Agency for the Acts of the Ship’s 

Medical Staff (“Count VIII”); and Assumption of Duty for the Negligence of the Ship’s Medical 

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Staff (“Count IX”). ECF No. [1]. In the Complaint, Plaintiff alleges that on July 8, 2022, she 

slipped and fell on a foreign liquid substance while a passenger on Defendant’s cruise ship, the 

Vista. Id. at ¶¶ 12-14. Defendant now seeks to dismiss Count VI of the Complaint because (1) it 

improperly comingles theories of direct and vicarious liability; and (2) it fails to state a claim for 

vicarious liability as a matter of law. See generally id. Plaintiff fresponds that vicarious liability is 

a valid theory of liability even when it overlaps with direct liability and that she adequately pled 

vicarious liability because she identified the crew member at issue in sufficient detail.

II. LEGAL STANDARD

A. Shotgun Pleading

“A complaint that fails to articulate claims with sufficient clarity to allow the defendant to 

frame a responsive pleading constitutes a ‘shotgun pleading.’” Lampkin-Asam v. Volusia Cnty.

Sch. Bd., 261 F. App’x. 274, 277 (11th Cir. 2008) (quoting Byrne v. Nezhat, 261 F.3d 1075, 1128-

29 (11th Cir. 2001)). “Shotgun pleadings, whether filed by plaintiffs or defendants, exact an 

intolerable toll on the trial court’s docket, lead to unnecessary and unchanneled discovery, and 

impose unwarranted expense on the litigants, the court and the court’s parajudicial personnel and 

resources. Moreover, justice is delayed for the litigants who are ‘standing in line,’ waiting for their 

cases to be heard.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356-57 (11th Cir. 2018) (quoting 

Cramer v. Fla., 117 F.3d 1258, 1263 (11th Cir. 1997)). 

Overall, shotgun pleadings do not establish a connection between “the substantive count 

and the factual predicates . . . [and] courts cannot perform their gatekeeping function with regard 

to the averments of [the plaintiff’s claim].” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 

1279-80 (11th Cir. 2006). The Eleventh Circuit has identified four types of shotgun pleadings: 

The most common type—by a long shot—is a complaint containing multiple counts 

where each count adopts the allegations of all preceding counts, causing each 

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successive count to carry all that came before and the last count to be a combination 

of the entire complaint. The next most common type, at least as far as our published 

opinions on the subject reflect, is a complaint that does not commit the mortal sin 

of re-alleging all preceding counts but is guilty of the venial sin of being replete 

with conclusory, vague, and immaterial facts not obviously connected to any 

particular cause of action. The third type of shotgun pleading is one that commits 

the sin of not separating into a different count each cause of action or claim for 

relief. Fourth, and finally, there is the relatively rare sin of asserting 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. The unifying characteristic of all types of shotgun pleadings is that 

they fail to one degree or another, and in one way or another, to give the defendants 

adequate notice of the claims against them and the grounds upon which each claim 

rests.

Merch. One, Inc. v. TLO, Inc., No. 19-CV-23719, 2020 WL 248608, at *3 (S.D. Fla. Jan. 16, 2020) 

(quoting Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015) 

(footnotes omitted)). Shotgun pleadings are condemned by the Eleventh Circuit, which has 

specifically instructed district courts to dismiss shotgun pleadings as “fatally defective.” B.L.E. v.

Georgia, 335 F. App’x. 962, 963 (11th Cir. 2009) (citations omitted). 

B. Failure to State a Claim 

A pleading must contain “a short and plain statement of the claim showing that the pleader 

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual 

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 

S.Ct. 1955, 167 L.Ed.2d 929, (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining 

that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation”). Additionally, a complaint may not rest on “‘naked 

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

550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be enough to raise a right to relief 

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above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. 1955. If the allegations satisfy 

the elements of the claims asserted, a defendant’s motion to dismiss must be denied. See id. at 556.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s 

allegations as true and evaluate all plausible inferences derived from those facts in favor of the 

plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe 

of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); 

AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009) 

(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving 

party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678. 

C. General Maritime Law

In cases involving alleged torts “committed aboard a ship sailing in navigable waters,” the 

applicable substantive law is general maritime law, the rules of which are developed by the federal 

courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec 

v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)); see also Everett v. Carnival 

Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Because this is a maritime tort, federal 

admiralty law should control. Even when the parties allege diversity of citizenship as the basis of 

the federal court’s jurisdiction (as they did in this case), if the injury occurred on navigable waters, 

federal maritime law governs the substantive issues in the case.”). In the absence of well-developed 

maritime law, courts may supplement the maritime law with general common law and state law 

principles. See Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 

2011). 

III. DISCUSSION

A. Theories of Direct and Vicarious Liability Comingled

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Defendant first argues that Count VI should be dismissed because it is a shotgun pleading 

that contains conflicting allegations and theories of direct and vicarious liability. See ECF No. [7] 

at 6-8. Plaintiff asserts that vicarious liability is a valid theory of liability even when it overlaps 

with premises liability. ECF No. [9] at 2-4. 

The Court reiterates that the Eleventh Circuit has established four (4) types of shotgun 

pleadings. See Weiland, 792 F.3d at 1321-23. Defendant’s argument that Count VI is a shotgun 

pleading falls under the third type; “[t]he third type of shotgun pleading is one that commits the 

sin of not separating into a different count each cause of action or claim for relief.” Id. at 1323.

Defendant contends that because Plaintiff incorporated ¶¶ 1-34 of its Complaint into Count VI, it 

has improperly incorporated allegations against Carnival under a theory of direct liability into a 

count which alleges vicarious liability. ECF No. [7] at 7. In support, Defendant cites two cases 

from this district in which the court dismissed a count that included claims under multiple theories 

of liability. See Gharfeh v. Carnival Corp., 17-20499-CIV, 2018 WL 501270, at *6 (S.D. Fla. Jan. 

22, 2018); McFee v. Carnival Corp., 19-22917-CIV, 2020 WL 13389094 at *15 (S.D. Fla. Feb. 3, 

2020)1. Plaintiff relies on another Southern District of Florida case, Hunter v. Carnival Corp., to 

support its claim that Plaintiff may properly proceed under both direct liability and vicarious 

liability theories. See Hunter v. Carnival Corp., 22-20236-CIV, 2022 WL 2498757 (S.D. Fla. July 

1, 2022). There, the court held that Plaintiff was permitted to assert “both direct and vicarious 

liability claims against Defendant.” Id. at *4. That case is clearly distinguishable because the 

plaintiff there did not attempt to assert claims under both theories in the same count as Plaintiff 

has done here. 

1

 The Court corrected the citation included in Defendant’s Motion which misstated the year of the decision.

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It is evident from the heading Plaintiff provided to Count VI, “Negligence for the Acts of 

Carnival’s Crew, Staff, Employees, and/or Agents, based on Vicarious Liability” that Plaintiff 

intended Count VI to be a claim based on vicarious liability. See ECF No. [1] at 18. Nevertheless, 

the Court agrees with Defendant that the language used and incorporated into Count VI is 

indicative of a claim for direct liability, and a claim for direct liability should be brought in a 

separate count. See Gharfeh, 17-20499-CIV, 2018 WL 501270, at 6 (finding that where a count 

contained a title suggesting it contains only a claim for vicarious liability, but it also includes 

allegations of direct negligence, it is “an example of an impermissible shotgun pleading and it 

needs to be clarified.”). The Court therefore finds that Count VI must be dismissed. Moreover, 

even if the Court were to find that Count VI was not a shotgun pleading, it still must be dismissed 

for the reasons explained below. 

B. Claim for Vicarious Liability 

Defendant argues that Plaintiff fails to properly plead a claim for vicarious liability as a 

matter of law because Count VI contains no factual allegations regarding any duty breached by a 

crewmember or any allegations regarding crewmember misconduct relating to Plaintiff’s slip and 

fall. See ECF No. [7] at 8-10. Plaintiff responds that she has identified the crewmember liable, the 

date on which the negligent conduct of this crewmember occurred, and the location where the 

negligent conduct occurred. ECF No. [9] at 5-6. 

The Court agrees with Defendant. Under a theory of vicarious liability, the duty and 

conduct of the Defendant, the shipowner, are not relevant. See Yusko v. NCL (Bahamas), Ltd., 4 

F.4th 1164, 1169 (11th Cir. 2021) (“[T]he scope of a shipowner’s duty has nothing to do with 

vicarious liability which is not based on the shipowner’s conduct.”). Under the theory of vicarious 

liability “an otherwise non-faulty employer [can] be held liable for the negligent acts of [an] 

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employee acting within the scope of employment.” Holland v. Carnival Corp., 50 F.4th 1088, 

1094 (11th Cir. 2022) (internal quotation marks omitted). To prove negligence, “a plaintiff must 

show that (1) the tortfeasor had a duty to protect the plaintiff from a particular injury, (2) the 

tortfeasor breached that duty, (3) the breach actually and proximately caused the plaintiff's injury, 

and (4) the plaintiff suffered actual harm.” Yusko, at 1167-1168. 

While the Court agrees that Plaintiff adequately indicated a specific individual or 

individuals employed by Defendant as the tortfeasor, Count VI does not adequately plead 

negligence committed by that tortfeasor. Plaintiff set out the duty owed by Defendant, not its 

employee, and contends that Defendant’s breach of that duty was the actual and proximate cause 

of Plaintiff’s injury, rather than specifically identifying how Defendant’s employee breached a 

duty and how that breach caused Plaintiff’s injury. See ECF No. [1] ¶¶ 104-113. The Court 

therefore finds that Count VI of the Complaint fails to state a claim as a matter of law.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: 

1. Defendant’s Motion, ECF No. [7], is GRANTED. 

2. Count VI of the Complaint is DISMISSED without prejudice. 

3. Plaintiff may file an Amended Complaint no later than November 14, 2022. 

DONE AND ORDERED in Chambers at Miami, Florida, on November 7, 2022. 

 ________________________________ 

 BETH BLOOM

UNITED STATES DISTRICT JUDGE

cc: Counsel of Record 

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