USCA11 Case: 21-10955 Date Filed: 02/28/2022 Page: 1 of 11
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10955
____________________
MICHELLE M. NEWBAUER,
Plaintiff-Appellant,
versus
CARNIVAL CORPORATION,
a Panamanian corporation doing business
as Carnival Cruise Lines,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-23757-RNS
____________________
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2 Opinion of the Court 21-10955
Before WILSON, LUCK, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
Michelle Newbauer appeals from the district court’s dismis-
sal of her complaint against Carnival Corporation for failure to
state a claim. Newbauer contends that the district court erred in
its dismissal because she pleaded sufficient facts to support the con-
structive notice element of her negligence claims. Alternatively,
Newbauer argues that the district court erred in dismissing her
complaint without first giving her an opportunity to amend. After
careful review, and with the benefit of oral argument, we affirm
the district court’s dismissal.
I. FACTUAL AND PROCEDURAL BACKGROUND 1
Carnival, a Panamanian corporation with its principal place
of business in Miami, Florida, operates a number of cruise ships,
including the Magic. Newbauer, a passenger onboard the Magic,
“was walking on the Lido Deck of the vessel, near the Red Frog
Bar, when she slipped on a liquid or wet, slippery transitory sub-
stance near the bar and fell.” As a result of this fall, she sustained
1 Because the procedural posture of this case involves a Federal Rule of Civil
Procedure 12(b)(6) motion, we must accept the allegations of plaintiff’s com-
plaint as true. See Chaparro v. Carnival Corp.,
693 F.3d 1333, 1335 (11th Cir.
2012). The facts set forth in this section of the opinion therefore are taken
from the complaint and construed in the light most favorable to the plaintiff.
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21-10955 Opinion of the Court 3
“serious injuries including a patellar subluxation and a lateral me-
niscus tear of the right knee, which was surgically repaired.”
Newbauer filed a complaint against Carnival in the Southern
District of Florida, asserting claims for negligent failure to maintain
and negligent failure to warn. She alleged that “the liquid or wet,
slippery transitory substance” she slipped on “was located in an
area of the ship that was a high traffic dining area” such that Carni-
val “knew or should have known of the presence of the . . . sub-
stance.” Newbauer further alleged that the substance “had existed
for a sufficient period of time before [her] fall” such that Carnival
had actual or constructive knowledge of its presence and the op-
portunity to correct or warn about the hazard. In the alternative,
Newbauer alleged that Carnival had actual or constructive
knowledge of the substance because of “the regularly and fre-
quently recurring nature of the hazard in that area.”
Carnival filed a motion to dismiss pursuant to Rule 12(b)(6),
arguing that Newbauer failed to properly plead a negligence claim.
Carnival contended that Newbauer’s allegations were “insufficient,
without more, to put Carnival on notice of the specific alleged dan-
gerous condition” and did “not put forward any allegations as to
the open and obvious nature of the hazard pled.” Instead, Carnival
argued that Newbauer’s allegations were “nothing more than a
boilerplate recitation of the elements [of a negligence claim] fol-
lowed by mere conclusory statements,” which were “wholly insuf-
ficient.” Newbauer opposed Carnival’s motion.
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4 Opinion of the Court 21-10955
The district court granted Carnival’s motion to dismiss. The
district court found that Newbauer “failed to allege that Carnival
was on either actual or constructive notice of the hazard in ques-
tion” and thus failed to satisfy the pleading standards set forth in
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft
v. Iqbal,
556 U.S. 662 (2009). The district court noted that New-
bauer had not alleged any facts in support of her claim that there
were prior slip and fall incidents where she fell. As to her allegation
about the highly trafficked dining area, the district court found that
Newbauer mistakenly conflated foreseeability with actual or con-
structive notice and that she had not sufficiently pled that the high
trafficked area gave Carnival actual or constructive notice of the
wet substance at issue. And, as to her allegation about the length
of time the hazard had been present, the district court determined
that it was impossible to tell, based on Newbauer’s sole conclusory
statement, if the condition was present for seconds, minutes, or
hours. Thus, the district court explained that while Newbauer’s
complaint made clear that it was “possible” Carnival was on notice,
the complaint did not allege sufficient facts to state a claim that
were “plausible on [their] face sufficient to survive a motion to dis-
miss.” This appeal ensued.
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of a Rule
12(b)(6) motion to dismiss for failure to state a claim, accepting the
complaint’s allegations as true and construing them in the light
most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693
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21-10955 Opinion of the Court
5
F.3d 1333, 1335 (11th Cir. 2012) (quoting Cinotto v. Delta Air Lines
Inc.,
674 F.3d 1285, 1291 (11th Cir. 2012)).
III. ANALYSIS
On appeal, Newbauer contends that the district court erred
in dismissing her complaint for failure to state a claim. Newbauer
asserts that she pleaded sufficient facts under Rule 8(a)(2) to sup-
port the constructive notice element of her negligence claims. She
also asserts that the district court applied a heightened pleading
standard in contravention of Rule 8(a)(2).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint
to provide “a short and plain statement of the claim showing that
the pleader is entitled to relief.” The pleading standard in Rule 8
“does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Chaparro, 693 F.3d at 1337 (quoting Iqbal,
556 U.S. at
678). Thus, “[a] complaint that provides ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action’ is not
adequate to survive a Rule 12(b)(6) motion to dismiss.”
Id. (quot-
ing Twombly,
550 U.S. at 555). Instead, the complaint “must con-
tain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
Id. (quoting Iqbal,
556 U.S. at
678). To do so, “[a] facially plausible claim must allege facts that
are more than merely possible,” and a plaintiff’s factual allegations
that are “‘merely consistent with’ a defendant’s liability” will not
be considered facially plausible.
Id. (emphasis added) (quoting Iq-
bal,
556 U.S. at 678). Indeed, “[a] claim has facial plausibility when
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6 Opinion of the Court 21-10955
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. And “if allegations are indeed more
conclusory than factual, then the court does not have to assume
their truth.” Chaparro, 693 F.3d at 1337.
While “[t]he plausibility standard is not akin to a ‘probability
requirement,’ . . . it asks for more than a sheer possibility that a de-
fendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (quoting
Twombly,
550 U.S. at 556). This analysis is not formulaic; instead,
“[d]etermining whether a complaint states a plausible claim for re-
lief [is] . . . a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense” in reviewing
the plaintiff’s allegations.
Id. at 679. Additionally, “[t]hreadbare
recitals of the elements of a cause of action” and “conclusory state-
ments” are insufficient.
Id. at 678 (citing Twombly,
550 U.S. at
555). When evaluating a motion to dismiss, the first step is to
“eliminate any allegations in the complaint that are merely legal
conclusions.” Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283,
1290 (11th Cir. 2010). The second step is to assume the veracity of
well-pleaded factual allegations and “then determine whether they
plausibly give rise to an entitlement to relief.”
Id.
“Maritime law governs actions arising from alleged torts
committed aboard a ship sailing in navigable waters,” and we “‘rely
on general principles of negligence law’” in analyzing those actions.
Guevara v. NCL (Bahamas) Ltd.,
920 F.3d 710, 720 (11th Cir. 2019)
(quoting Chaparro, 693 F.3d at 1336). The elements of a negligence
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21-10955 Opinion of the Court 7
claim are well settled: “a plaintiff must allege that (1) the defendant
had a duty to protect the plaintiff from a particular injury; (2) the
defendant breached that duty; (3) the breach actually and proxi-
mately caused the plaintiff’s injury; and (4) the plaintiff suffered ac-
tual harm.” Franza v. Royal Caribbean Cruises, Ltd.,
772 F.3d 1225,
1253 (11th Cir. 2014) (quoting Chaparro, 693 F.3d at 1336). “With
respect to the duty element in a maritime context, ‘a shipowner
owes the duty of exercising reasonable care towards those lawfully
aboard the vessel who are not members of the crew.’” Guevara,
920 F.3d at 720 (quoting Kermarec v. Compagnie Generale Trans-
atlantique,
358 U.S. 625, 630 (1959)). “This standard ‘requires, as a
prerequisite to imposing liability, that the carrier have had actual
or constructive notice of [a] risk-creating condition, at least where,
as here, the menace is one commonly encountered on land and not
clearly linked to nautical adventure.’”
Id. (alteration in original)
(quoting Keefe v. Bahama Cruise Line, Inc.,
867 F.2d 1318, 1322
(11th Cir. 1989)); see also Kornberg v. Carnival Cruise Lines, Inc.,
741 F.2d 1332, 1334 (11th Cir. 1984) (explaining that a shipowner
“is not liable to passengers as an insurer, but only for its negli-
gence”). In order to survive Carnival’s motion to dismiss, New-
bauer therefore had to plead sufficient facts to support each ele-
ment of her claim, including that Carnival had actual or construc-
tive notice about the dangerous condition. Amy v. Carnival Corp.,
961 F.3d 1303, 1308 (11th Cir. 2020).
Actual notice exists when the defendant knows about the
dangerous condition, and constructive notice exists where “the
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8 Opinion of the Court 21-10955
shipowner ought to have known of the peril to its passengers.”
Keefe,
867 F.2d at 1322. A plaintiff “can establish constructive no-
tice with evidence that the ‘defective condition exist[ed] for a suffi-
cient period of time to invite corrective measures.’” Guevara, 920
F.3d at 720 (alteration in original) (quoting Monteleone v. Bahama
Cruise Line, Inc.,
838 F.2d 63, 65 (2d Cir. 1988)). “Alternatively, a
plaintiff can establish constructive notice with evidence of substan-
tially similar incidents in which ‘conditions substantially similar to
the occurrence in question must have caused the prior accident.’”
Id. (quoting Jones v. Otis Elevator Co.,
861 F.2d 655, 661–62 (11th
Cir. 1988)).
This appeal requires us to determine whether Newbauer al-
leged a facially plausible claim that Carnival knew or “ought to
have known of” the hazardous wet surface that caused her to slip.
Keefe,
867 F.2d at 1322. Reviewing Newbauer’s complaint and ac-
cepting her allegations as true, we conclude that Newbauer failed
to include any factual allegations that were sufficient to satisfy the
pleading standard set forth in Iqbal and Twombly such that it is
facially plausible that Carnival had actual or constructive notice of
the dangerous condition. Rather, her complaint contains only con-
clusory allegations as to actual or constructive notice. For exam-
ple, Newbauer alleged in her complaint that Carnival had construc-
tive notice of the wet substance on the deck because it was in a
“high traffic dining area,” but she failed to provide any factual alle-
gations supporting the notion that high traffic in the area gave Car-
nival notice of the condition. Similarly, while Newbauer alleged in
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21-10955 Opinion of the Court 9
her complaint that the substance “had existed for a sufficient period
of time before [her] fall” such that Carnival had constructive notice
of its presence, she failed to allege any facts in support of this con-
clusory allegation. Likewise, Newbauer failed to allege a sufficient
factual basis to support her conclusory allegation that Carnival had
actual or constructive knowledge of the hazard based on the “reg-
ularly and frequently recurring nature of the hazard in that area.”
And “[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations,” which
are noticeably absent from Newbauer’s complaint. Iqbal,
556 U.S.
at 679.
Newbauer argues, however, that her allegation that the wet
substance was in a high traffic area supports the following series of
inferences: (1) because the area was highly trafficked, crewmem-
bers working in the nearby bars and restaurants would be present
there; (2) before and at the time of her fall, crewmembers were
staffing the surrounding bar and dining areas; and (3) those crew-
members had a clear, unobstructed view of the area in which she
fell. Based on these inferences, Newbauer contends that Carnival
had constructive notice of the wet substance on the deck.
Newbauer’s argument is unpersuasive because she failed to
allege any facts suggesting the amount of time the hazard existed
on the deck before she fell or that there were crewmembers moni-
toring the area. Indeed, Newbauer’s complaint did not allege any
facts supporting the conclusions that the substance had been on the
floor for a sufficient period of time to create constructive notice,
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10 Opinion of the Court 21-10955
that this was a recurring issue, or that there may have been em-
ployees in the area who observed the hazard and failed to take cor-
rective action.
Additionally, we conclude that Newbauer’s reliance on this
Court’s decision in Yusko v. NCL (Bahamas), Ltd.,
4 F.4th 1164
(11th Cir. 2021), is misplaced. Yusko reaffirmed that where, as
here, a plaintiff is proceeding on a theory of direct liability against
the shipowner for the negligent maintenance of the premises, the
plaintiff must establish notice as part of her negligence claim.
Id.
at 1167–69. Here, Newbauer sued Carnival directly for negligent
maintenance and failure to warn and has not raised any negligence
claims under the theory of vicarious liability.
Finally, Newbauer asserts that the district court erred by not
granting her leave to amend sua sponte before dismissing the com-
plaint. But our precedent is clear that “[a] district court is not re-
quired to grant a plaintiff leave to amend [her] complaint sua
sponte when the plaintiff, who is represented by counsel, never
filed a motion to amend nor requested leave to amend before the
district court.” Wagner v. Daewoo Heavy Indus. Am. Corp.,
314
F.3d 541, 542 (11th Cir. 2002) (en banc). Because Newbauer never
sought leave to amend the complaint, we conclude that there was
no error.
IV. CONCLUSION
Accordingly, for the reasons stated, we conclude that the dis-
trict court did not err in dismissing Newbauer’s complaint, and we
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21-10955 Opinion of the Court 11
affirm the district court’s dismissal of Newbauer’s complaint for
failure to state a claim.
AFFIRMED.
