FISHER
v.
CARNIVAL CORPORATION
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In a products liability or negligence case, the District Court adopted a Magistrate Judge's Report and Recommendations on Carnival Corporation's Motion to Dismiss, granting the motion in part and denying it in part. The court struck four paragraphs of Plaintiff's Amended Complaint that insufficiently alleged notice based on industry standards, inspection failures, prior similar incidents, and future discovery.
Plaintiff's notice allegations based on industry standards violations, inspection failures, prior similar incidents, and future discovery are insufficiently pleaded and must be stricken from the Amended Complaint. Plaintiff may file a second amended complaint within seven days to cure the defects rather than having the allegations stricken.
[1] A court may adopt a magistrate judge's report and recommendations without de novo review when no objections are filed.
[2] A motion to dismiss should be granted in part and denied in part when some claims are insufficiently pleaded and others are not.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Judge Goodman finds that Plaintiff: (1) insufficiently alleges notice based on a violation of industry standards; (2) offers conclusory and factually unsupported arguments regarding notice based on a failure to inspect; (3) fails to allege notice based on prior similar incidents; and (4) impermissibly alleges that future discovery will reveal evidence of notice.”
Establishes the four distinct deficiencies in Plaintiff's notice allegations that led to the striking of the complaint paragraphs.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff filed an Amended Complaint against Carnival Corporation. The complaint included allegations regarding notice in paragraphs 17(c), 17(d), 17(…
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THIS MATTER is before the Court on Chief Magistrate Judge Jonathan Goodman's Report and Recommendations (DE 22) (“Report”) on Defendant Carnival Corporation's (“Carnival”) Motion to Dismiss Plaintiff's Amended Complaint (DE 17) (“Motion”). In the Report, Judge Goodman recommends that the Motion be granted in part and denied in part. (DE 22 at 1.) Specifically, Judge Goodman finds that Plaintiff: (1) insufficiently alleges notice based on a violation of industry standards; (2) offers conclusory and factually unsupported arguments regarding notice based on a failure to inspect; (3) fails to allege notice based on prior similar incidents; and (4) impermissibly alleges that future discovery will reveal evidence of notice. (Id. at 7–18.) No objections were filed to the Report, and the time to object has passed.
Upon a careful review of the Report, the Motion, the record, and applicable law, it is ORDERED AND ADJUDGED that:
1. Judge Goodman's Report (DE 22) is AFFIRMED AND ADOPTED.
2. Defendant's Motion to Dismiss (DE 17) is GRANTED IN PART AND DENIED IN PART.
3. Paragraphs 17(c), 17(d), 17(e), and 17(f) of Plaintiff's Amended Complaint (DE 13) are hereby STRICKEN. [fn 1] Should Plaintiff prefer to amend her complaint rather than have these allegations stricken, she must file a second amended complaint, within seven (7) days from the date of this Order. [fn 2]
DONE AND ORDERED in Chambers in Miami, Florida, on this 22nd day of April, 2025.
KATHLEEN M. WILLIAMS UNITED STATES DISTRICT JUDGE
[fn 1]: In her response to Carnival's Motion to Dismiss, Plaintiff requested that the Court strike specific allegations as an alternative to dismissing the entire Complaint. (DE 19 at 11) (“However, to the extent this Honorable Court does desire to address each of [Plaintiff's] other allegations of notice, she respectfully submits that an order striking only those allegations is the better course of action, rather than dismissing [Plaintiff's] entire complaint.").
[fn 2]: As Judge Goodman correctly noted, Plaintiff improperly sought leave to amend her complaint by embedding the request within her opposition to Carnival's Motion to Dismiss. See Newton v. Duke Energy Fla., LLC, 895 F. 3d 1270, 1277 (11th Cir. 2018) (“[W]here a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”) (citations omitted). Nonetheless, the Court will afford Plaintiff another opportunity to amend her complaint.