[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 1 4

- 1 3228 Non

- a rgument Calendar

________________________ D.C. Docket No. 1 :1 4

- cv - 20822

- UU

GRACITA CHANG , Plaintiff

– Appell ant ,
versus CARNIVAL CORPORATION , a Panama Corp. d.b.a. Carnival Cruise Lines , Defendant

– Appell ee .

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( October 6, 2016 ) Before HULL , MARCUS , and JULIE CARNES , Circuit Judges. PER CURIA M :

Case: 14-13228 Date Filed: 10/06/2016 Page: 1 of 102 This action involves a single maritime negligence claim. Plaintiff Gracita Chang alleged that she slipped and fell on Defendant Carnival Corporation ’ s cruise ship. More than a year after the incident , Plaintiff filed suit in federal court. Defendant moved for summary judgment based on the one - year limitation period for filing such suits set out in Plaintiff’s cruise ticket

. Plaintiff acknowledged that she missed this deadline, but argues that this limitation period s hould be extended based on the doctrine of equitable tolling . T he district court rejected this argument and agreed with Defendant that Plaintiff had untimely filed suit . The court entered judgment for Defendant. Plaintiff now appeals th at order. We aff irm. BACKGROUND For purposes of this appeal, the undisputed facts of this action are as follows. On December 9, 2012, while aboard Defendant ’ s cruise ship, Plaintiff slipped and fell. Plaintiff ’ s cruise ticket contains several restrictions governing Plaintiff ’ s right to sue Defendant. Most importantly, the ticket contains a time limitation within which to file suit and a forum

- selection clause. T he time

- limitation provision disallows a suit filed more than one year after the date of the injury. T h e forum

selection clause requires Plaintiff to file suit in federal court

— and specifically in the Southern District of Florida

— so long as there is s ubject matter jurisdiction in federal court over Plaintiff’s claim

. Only if subject matter jurisdiction is lacking in

Case: 14-13228 Date Filed: 10/06/2016 Page: 2 of 103 federal court may Plaintiff file suit in state court , and then suit can be filed only in

a court located in Miami

- Dade County, Florida. 1
Plaintiff retained a California attorney to litigate her slip

- and

- fall claim against Defendant. Aware o f the impending litigation, Defendant twice informed Plaintiff ’ s attorney ( both on September 4, 2013, and on October 22, 2013) that it would not waive its rights under the forum

- selection clause. 2 Less than a month later, o n November 20, 2013, Plaintiff s ubstituted Florida counsel for her California counsel

. Then , o n December 4 or 6, 2013

— just a few days b efore expiration of the one

- year deadline

— Plaintiff filed her s lip

- and

- fall claim in a Florida state court , not federal court , as she was required to do

. On January 28, 2014, Defendant moved to dismiss the state

- court action , asserting Plaintiff’s violation of the forum

- selection clause

. While this motion to dismiss was pending in state court, Plaintiff switched gears , and on M arch 4, 2014,

1 The ticket ’ s one - year limitation states, “Suit to recover on any [personal injury] claim shall not be maintainable unless filed within one year after the date of the injury

. . . .” The ticket’s forum

- selection clause states that any persona l injury action must “ be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami

- Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country. ” 2 Both communications stated: All rights in equity, law, and those contained within the guest cruise ticket contract are expressly reserved, including the forum selection / venue provision requiring all passenger lawsuits against [Defendant] to be filed in the United States District Court for the Southern District of Florida in Miami, Florida. [Defendant] will not waive its contractu al defense if a lawsuit is filed in the wrong court
. ( E mphasis added). Case: 14-13228 Date Filed: 10/06/2016 Page: 3 of 104 before th e state court resolved Defendant ’ s motion, Plaintiff filed this parallel federal action. The federal action, however, was filed almost three months after the one

- year limitations period had elapsed

. Defendant moved for summary judgment in federal court ba sed on Plaintiff’s failure to file suit within the time limitation set out on the cruise ticket

. Plaintiff agreed that the one

- year limitation bind s her , but argued that , by filing the state court action within a year of her injury , the limitation period had been equitably tolled. The district court concluded that Plaintiff had failed to justify any equitable tolling and therefore had run afoul of the limitation period. The court entered summary judgment for Defendant. Plaintiff appeals that ruling. D ISCUSSION Plaintiff agrees that the one

- year limitation binds her and that more than a year elapsed between her injury and the filing of this action. 3 Nonetheless, Plaintiff argues that she should be deemed to have satisfied the one

- year limitation because she filed suit in state court within a year and that filing equitably tolled the limitation. Defendant responds that Plaintiff’s filing of t he state

- court action failed
to equitably toll the limitation because Plaintiff ’ s ticket contained a clause requiring the selection of a federal forum so long as there was federal jurisdiction ;

3 T he one

- year limitation arises from a contract, not a statute, but that makes no difference here

. Bailey v. Carnival Cruise Lines, Inc. , 774 F.2d 1577, 1579 n.3 (11th Cir. 1985) (“ There is ‘ no essential difference between contractu [] al and statutory limitations. ’ ” ).

Case: 14-13228 Date Filed: 10/06/2016 Page: 4 of 105 there clearly was federal jurisdiction over the claim; and Defendant had made clear
to Plaintiff that i t would insist on her compliance with the forum

- selection clause

. We agree. 4
As to P laintiff’s effort to excuse her untimely filing by invoking equitable tolling, “ [t] he Supreme Court has made clear that tolling is an extraordinary remedy which should be extended only sparingly. ” Justice v. United States , 6 F.3d 1474, 1479 (11th Cir. 1993) . To be in a position to advance a tolling argument, due diligence is a necessary, though not sufficient, prerequisite that a plaintiff must satisfy

. Id. Further, a l ate filing based on “garden

- variety” negligence is not sufficient to warrant tolling. Id. at 1480. In addition, the interests of justice on which a tardy plaintiff relies do not support a plaintiff who has “not file [ d ] her action in a timely fashion desp ite knowing or being in a position reasonably to know that the limitations period is running

. ” Id . at 1479. Finally, it is the plaintiff’s burden to show that equitable tolling is warranted. Id.

4 T he parties agree that “t he question of whether equitable tolling applies is a legal one subject to de novo review .” Booth v. Carnival Corp. , 522 F.3d 1148, 1149 (11 th Cir. 2008) . Our opinions on the standard of review however, are i nconsistent. See, e .g. , Arce v. Garcia , 434 F.3d 1254, 1260 (11th Cir. 2006) (reviewing the district court ’ s application of equitable tolling for an abuse of discretion). However, our e arliest opinion s on the issue engaged in de novo review

. S ee , e.g. , Bailey v. Carnival Cruise Lines, Inc. , 774 F.2d 1577, 1578 (11th Cir. 1985) . W e must follow th ose opinion s . Morrison v. Amway Corp. , 323 F.3d 920, 929 (11th Cir. 2003) (“[W] hen circuit authority is in conflict, a panel should look to the line of authority containing the earliest case .”)

. In any event , a more deferential abuse

- of

- discretion standard would produce the same result in this appeal.

Case: 14-13228 Date Filed: 10/06/2016 Page: 5 of 106 Notwithstanding the above, we have on , at least one occasion, found equitable tolling where a plaintiff subject to a forum

- selection clause filed a federal suit late, having earlier filed, in the wrong forum, a timely state court action. In Booth v. Carnival Corp oration , 522 F.3d 1148 (11th C ir. 2008) , a cruise passenger who was subject to the same forum selection clause present here timely filed his negligence action in state court (sixteen days prior to expiration of the limitations period) before later filing an action in the federal court dictated by the forum

selection clause ; the federal action was filed past the one

- year deadline

. Id . at 1149

– 50. T he district court denied the defendant’s motion to dismiss

. Booth , 522 F.3d at 1149. W e affirmed that court’s ruling, finding applicable equitable tolling on the particular facts before us. Id. at 1150

– 53. In doing so, we focused on a combination of four fact or s . First, the “ state court
. . . possessed subject matter jurisdiction concurrently with the federal courts .” Id. at 1153. Sec ond, “ the state suit was dismissed solely on grounds of improper venue .” Id. Third, the defendant was aware prior to expiration of the limitation period that the plaintiff intended to file suit. Id. Fourth, the plaintiff “was entitled to believe that h is state filing might be sufficient given the fact that defendants can, and often do, waive their defense of improper venue.” Id.

Case: 14-13228 Date Filed: 10/06/2016 Page: 6 of 107 From all of the above, Booth concluded that the plaintiff had prosecuted his claim with the diligence necessary to warrant consideration of an equitable tolling claim and therefore the limitations period was properly tolled from the date on which he filed his state

- court action. Id. at 1158. Although the parties seemingly agree that the first th ree fact or s identified above are present here, clearly the fourth factor is not. That is, prior to expiration of the limitations period, Defendant twice notified Plaintiff of its insistence that Plaintiff adhere to the forum

- selection clause

— that is, that Plaintiff file suit in the federal district court in the Southern District of Florida. Instead of complying with a provision of the contract that Defendant had explicitly and timely brought to Plaintiff’s attention , Plaintiff instead chose to file her su it in the wrong forum. This was not the conduct of the plaintiff in Booth . And, unlike in Booth , Plaintiff here could have been under no misapprehension that Defendant would decline to hold her feet to the fire. Specifically, before the district court, Defendant submitted an affidavit from its Senior Claims Representative, who averred (1) that “[o] n September 4, 2013, [he] drafted and mailed ” the first communication to Plaintiff’s California attorney and (2) that “[o]n October 22, 2013, [he] drafted, te lefaxed and mailed ” the second, similar communication to Plaintiff’s California attorney. Defendant attached to the affidavit both communications, which clearly explain that Defendant would not

Case: 14-13228 Date Filed: 10/06/2016 Page: 7 of 108 waive its forum

- selection defense. There is no evidence that the letters were not mailed to the proper address. In response to the above evidence, Plaintiff provided nothing other than unsupported assertions suggesting the possibility that her California attorney might have failed to receive the communication s or might have failed to advise Plaintiff or her Florida counsel of Defendant’s warning. But such assertions are not evidence. Travaglio v. Am. Exp. Co. , 735 F.3d 1266, 1270 (11th Cir. 2013) ( “Statements by counsel in briefs are not evidence . . . .”). 5 Moreover, “ t he burden is on the plaintiff to show that equitable tolling is warranted.” Booth , 522 F.3d at 1150

. With no evidence in opposition to that presented by Defendant, Plaintiff clearly failed to shoulder her burden. See Pines v. Warnaco, Inc. , 706 F.2d 1173, 1178 (11th Cir. 1983) (rejecting a plaintiff’s similar arguments 6 ) ; 10B Charles

5 Even those unsupported assertions fail t o squarely state that Plaintiff’s California attorney did not timely relay Defendant’s communications. Nor is it clear that it would make a difference if Plaintiff had offered such evidence. See Irwin v. Dep’ t of Veterans Affairs , 498 U.S. 89, 9 2 (1990) (“ Under our system of representative litigation, ‘ each party

. . . is considered to have notice of all facts, notice of which can be charged upon the attorney.’ ” ). 6 Pines held that a one

- year limitation barred the plaintiff’s fraud claim because the plaintiff should have known of the underlying fraud more than a year before he sued. The Pines plaintiff had argued against summary judgment by asserting that the limitation s hould begin later. The Pines court rejected th at contention. Although [the plaintiff] argues that there was a factual dispute whether he should have discovered the fraud more than a year before filing suit, mere allegations cannot defeat summary judgment. And [the plaintiff] can point to no evidence supporting his allegation that he was prevented from obtaining information [about the fraud]

. 706 F.2d at 1178 ( citation omitted )

.

Case: 14-13228 Date Filed: 10/06/2016 Page: 8 of 109 Alan Wright & Arthur R. Miller , Federal Practice and Procedure § 2734 (3d ed. 2015 ) (“[W] hen a summary

- judgment motion is based on the running of the applicabl e statute of limitations and defendant shows that the prescribed period has elapsed, plaintiff may be able to defeat summary judgment by introducing facts, by affidavits or other evidence, raising a genuine issue whether the statute should be suspended.

. . . But the motion should not be denied on the mere chance that there might be facts that would toll the statute. ”)

. Here, P laintiff was specifically warned by De fendant that the latter intended to enforce the forum

- selection clause, but P laintiff chose to ignore that warning by filing suit in an incorrect forum, which decision directly led to the need to file suit late in the correct forum. If, on these facts, a plaintiff could circumvent the forum

selection clause, the forum

- selection cl ause would lose much of its force, leading to the unnecessary expenditure of resources by courts and litigants. See Carnival Cruise Lines, Inc. v. Shute , 499 U.S. 585, 593

– 94 (199 1 ) ( “ [A] clause establishing
ex ante the forum for dispute resolution has th e salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwi se would be devo ted to deciding those motions.” )

Case: 14-13228 Date Filed: 10/06/2016 Page: 9 of 1010 CONCLUSION After having been warned by Defendant that it intended to enforce the forum

- selection clause, Plaintiff nonetheless sued Defendant in the wrong forum

. Plaintiff finally sued Defendant in the cor rect forum, but did so after expiration of the limitations period. We find that equitable tolling does not apply under these circumstances

. Accordingly, we AFFIRM

.

Case: 14-13228 Date Filed: 10/06/2016 Page: 10 of 10