Opinion · Court of Appeals for the Eleventh Circuit

Carmela Deroy v. Carnival Corporation

Carmela Deroy v. Carnival Corp., 963 F.3d 1302 (11th Cir. 2020)

Type: Opinion
Court: Court of Appeals for the Eleventh Circuit
Jurisdiction: Federal
Date: 2020-06-30
Topic: litigation

explaining that a plaintiff alleging a maritime in personam claim may file suit in: (1) federal court under admiralty or diversity jurisdiction, or (2) state court | noting that “it is the facts and substance of the claims alleged, not the jurisdictional labels attached, that ultimately determine whether a court can hear a claim” | “binding case law in state court would have required the state court to dismiss [the plaintiff’s] claim in accordance with the forum-selection clause” | noting federal courts have an obligation to determine subject matter jurisdiction | “Unlike with federal cases brought at law, no Seventh Amendment right to a jury trial applies in admiralty cases.” | “Federal courts have an obligation to examine sua sponte their own 1 Mr. Davis cites 8 U.S.C. § 1324(c | “[P]arties are free to contract for a federal forum for potential claims, provided, of course, that the federal forum has independent subject-matter jurisdiction.” | “Federal courts have an obligation to examine sua sponte their own jurisdiction over a case, notwithstanding the contentions of the parties.” | “it is the facts and substance of the claims alleged, not the jurisdictional labels attached, that ultimately determine whether a court can hear a claim” | “Federal courts have an obligation to examine sua sponte their own jurisdiction over a case, notwithstanding the contentions of the parties.” | “when admiralty is the only basis for jurisdiction, then admiralty jurisdiction applies, regardless of how the plaintiff designates her case” | “[W]hen admiralty is the only basis for jurisdiction, then admiralty jurisdiction applies, regardless of how the plaintiff designates her case.” | district court had admiralty subject matter jurisdiction over a complaint that explicitly disclaimed admiralty jurisdiction, because the complaint “allege[d] sufficient facts demonstrating that the district court had” such jurisdiction | “Where contract principles do not reveal a particular meaning of a clause in question and more than one reasonable construction is plausible, we choose the construction that favors the non-drafting party.” | “Federal courts have an obligation to examine sua sponte their own jurisdiction over a case, notwithstanding the contentions of the parties.” (citing Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)) | quotation 4 “In a given case, a federal district court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3 | “Certainly, pleading in the alternative is permissible in federal court.” | “pleading in the alternative is permissible in federal court”

Citator

Cited by: 27 opinions

Case: 18-12619 Date Filed: 06/30/2020 Page: 1 of 25

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 18-12619
________________________

D.C. Docket No. 1:18-cv-20653-UU

CARMELA DEROY,

Plaintiff - Appellee,

versus

CARNIVAL CORPORATION,

Defendant - Appellant.

________________________

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

(June 30, 2020)

Before ROSENBAUM, GRANT, and HULL, Circuit Judges.

ROSENBAUM, Circuit Judge:

Fans of movies set in medieval times know that the narrow slits in otherwise

seemingly impenetrable castle walls allowed castle defenders to launch arrows at
Case: 18-12619 Date Filed: 06/30/2020 Page: 2 of 25

approaching castle attackers.1 This architectural feature was designed to protect the

archer while still allowing the archer to defend the castle.2 It is known as a

“loophole.”3

But arrows were not the only thing that could fit through castle-wall

loopholes. Sometimes children and small adults could as well.4 And they could use

them to escape the thick castle walls. 5

It’s not clear that the figurative usage of the term “loophole” derives from a

reference to the architectural feature. But the parallels between the two usages are

nonetheless obvious. Figuratively, “loophole” has come to mean “[a]n outlet or

means of escape[;] [o]ften applied to an ambiguity or omission in a statute, etc.,

which affords opportunity for evading its intention.” Loop-hole, Oxford English

Dictionary, https://www.oed.com/view/Entry/110180 (last visited June 29, 2020).

Here, Plaintiff-Appellee Carmela DeRoy attempts to take advantage of a

supposed loophole in the forum-selection clause of a contract she entered into with

1
Loophole, Grammarist, https://grammarist.com/interesting-words/loophole/ (last visited
June 29, 2020); Loophole, Online Etymology Dictionary, https://www.etymonline.com/word/
loophole (last visited June 29, 2020).
2
Loophole, Grammarist, supra note 1.
3
What’s the origin of “loophole”?, The Straight Dope (Feb. 6, 2003), https://www.
straightdope.com/columns/read/2071/whats-the-origin-of-loophole/; see also Loophole,
Dictionary by Merriam-Webster, https://www.merriam-webster.com/dictionary/loophole (last
visited June 29, 2020 ) (defining “loophole” secondarily as, among other things, “a small opening
through which small arms may be fired” and noting this definition as the “first known use” of the
term, in 1591); Loop-hole, Oxford English Dictionary, https://www.oed.com/view/Entry/110180
(last visited June 29, 2020).
4
The Straight Dope, supra note 3.
5
See id.
2
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Defendant-Appellant Carnival Corporation when she bought a ticket for a Carnival

cruise. The forum-selection clause requires all litigation to proceed in federal court

if federal jurisdiction lies for the claim. DeRoy, who injured her foot on a rug while

onboard the Carnival Valor, simultaneously sued Carnival in both state and federal

court. In her federal suit—this case—she attempted to plead her case to avoid

invoking federal jurisdiction, even though federal jurisdiction could exist over a

claim seeking damages for the injuries DeRoy allegedly suffered onboard the Valor.

Then DeRoy sought for the district court to dismiss this federal case for lack of

jurisdiction, so she could permissibly proceed with the state suit under the forum-

selection clause.

It was a creative effort. But DeRoy’s proposed loophole does not exist, so she

cannot escape the forum-selection clause’s ironclad consequences. Under the

forum-selection clause’s plain language, when jurisdiction for a claim could lie in

federal district court, federal court is the only option for a plaintiff. Here, DeRoy’s

claim for negligence at sea falls well within the walls of the federal court’s admiralty

jurisdiction. Even without explicitly invoking admiralty jurisdiction—and in fact

intentionally attempting to plead around it—DeRoy’s complaint is subject to Federal

Rule of Civil Procedure 9(h)’s provision rendering her claim an admiralty or

maritime claim. Her claim is therefore subject to the forum-selection clause’s

federal-court-forum fortress.

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For these reasons, the district court erred in dismissing the action for lack of

subject-matter jurisdiction. We therefore reverse and remand for further

proceedings.

I. FACTUAL BACKGROUND

For purposes of reviewing a district court’s dismissal for lack of subject-

matter jurisdiction, we take the facts as the plaintiff has alleged them, unless the

district court has made a contrary finding. Giardiello v. Balboa Ins. Co.,

837 F.2d 1566

, 1568 n.1 (11th Cir. 1988).

Here, DeRoy asserted that in October 2016, she was a cruise passenger on the

Carnival Valor ship. During her cruise, DeRoy tripped on a dip in the carpeting in

one of the Valor’s inside hallways. As a result of her fall, DeRoy broke her right

foot and suffered other damages.

On February 20, 2018, DeRoy simultaneously filed two complaints against

Carnival Corporation: one in the United States District Court for the Southern

District of Florida and one in the Eleventh Judicial Circuit Court in and for Miami-

Dade County, Florida. 6 Each complaint contains a single negligence claim against

Carnival.

DeRoy’s ticket contract with Carnival contained a forum-selection clause that

6
The record reflects that the state-court case is essentially on hold pending the outcome of
this appeal.

4
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required her to bring any claim in the United States District Court for the Southern

District of Florida if it was jurisdictionally possible to do so:

[I]t is agreed by and between the Guest and Carnival that
all disputes and matters whatsoever arising under, in
connection with or incident to this Contract or the Guest’s
cruise, including travel to and from the vessel, shall 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.
In accordance with this provision, as we have noted, DeRoy filed the suit pending

here.

Yet DeRoy devoted the majority of her complaint to attempting to establish

that the district court lacked subject-matter jurisdiction—whether diversity, federal-

question, or admiralty jurisdiction—to adjudicate her claims. In furtherance of this

tactic, DeRoy noted that both she and Carnival were citizens of Florida, so no

diversity jurisdiction existed. She next pointed out that since she brought a

negligence claim only, federal-question jurisdiction was lacking. And then she

asserted that she had elected to bring her in personam negligence action at law—not

in admiralty. So, DeRoy concluded, admiralty jurisdiction did not exist, since

admiralty jurisdiction does not extend to in personam claims brought at law.

For these reasons, DeRoy contended, the federal district court lacked subject-

matter jurisdiction and was required to dismiss her suit. Indeed, DeRoy invited the

5
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district court to “dismiss this case sua sponte because it lacks subject matter

jurisdiction over the claims in this lawsuit.” And the primary relief she sought in

her negligence claim consisted of “[d]ismissal of this case for lack of subject matter

jurisdiction,” with damages as only an alternative request. 7

Carnival responded with a motion to dismiss, or, in the alternative, for a more

definite statement. In its motion, Carnival asserted that DeRoy undoubtedly could

have invoked admiralty jurisdiction, since

28 U.S.C. § 1333

 provides that “[t]he

district courts have original jurisdiction, exclusive of the courts of the States,” over

“[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases

all other remedies to which they are entitled.” 8 And it noted that, to the extent the

saving-to-suitors clause of § 1333 guaranteed DeRoy the right to a jury trial under

the Florida constitution, Carnival would not object to a jury trial as DeRoy requested



       7
          Certainly, pleading in the alternative is permissible in federal court. United Techs. Corp.
v. Mazer,

556 F.3d 1260, 1273

 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure
expressly permits the pleading of both alternative and inconsistent claims.”). And “[t]he pleading
of alternative jurisdictional bases is a common practice.” State Establishment for Agr. Prod.
Trading v. M/V Wesermunde,

770 F.2d 987

, 991 n.3 (11th Cir. 1985). Pleading a lack of
jurisdiction as an alternative to her affirmative claim for negligence, while contradictory, is not
fatal to DeRoy’s complaint.
       8
          We have referred to this latter provision of

28 U.S.C. § 1333

 interchangeably as the
“saving to suitors” clause and the “savings to suitors” clause. See, e.g., Beiswenger Enters. Corp.
v. Carletta,

86 F.3d 1032, 1037

 (11th Cir. 1996) (“saving to suitors” clause); Murphy v. Fla. Keys
Elec. Co-op. Ass’n, Inc.,

329 F.3d 1311, 1319

 (11th Cir. 2003) (“savings to suitors” clause). The
Supreme Court has shown a preference for utilizing the singular moniker. See Lewis v. Lewis &
Clark Marine, Inc.,

531 U.S. 438, 443

(2001) (“saving to suitors” clause). For consistency, in this
opinion, we refer to the provision as the “saving-to-suitors clause.”

6
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in her complaint.9

In her response to Carnival’s motion, DeRoy clarified that she was not

challenging the enforceability of the forum-selection clause, nor was she claiming

that the saving-to-suitors clause in § 1333 gave her an inalienable right to litigate in

state court, nor was she arguing that she would be deprived of her right to a jury trial

under the Florida constitution. Rather, DeRoy claimed, she was simply exploiting a

hole in Carnival’s contract that no one had previously thought of: since, in DeRoy’s

view, the forum-selection clause allowed lawsuits where the federal courts had no

jurisdiction to proceed in state court, DeRoy pleaded her case in a way intended to

evade the federal district court’s jurisdiction—specifically, by refusing to invoke

admiralty jurisdiction.

The district court found DeRoy’s position convincing and entered an order

dismissing the complaint on May 22, 2018. In reaching this conclusion, the district

court determined that the saving-to-suitors clause in § 1333 allowed DeRoy to evade

the court’s admiralty jurisdiction. In the district court’s view, DeRoy, as the master

of her own complaint, had deliberately avoided invoking admiralty jurisdiction. It

did not matter, the district court said, that DeRoy could have brought her claim in

admiralty because she affirmatively brought her claim at law. As a result, the district

9
While admiralty cases do not guarantee the right to a jury trial, Federal Rule of Civil
Procedure 39 permits trying such an action by jury with the parties’ consent. Fed. R. Civ. P. 38,
39.

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court determined, it lacked subject-matter jurisdiction over DeRoy’s claim as she

pleaded it. And the forum-selection clause did not remedy the jurisdictional

problem, the district court reasoned, because subject-matter jurisdiction cannot be

created through consent. Nevertheless, the district court recognized that had DeRoy

brought her claim in admiralty, the court would have enjoyed subject-matter

jurisdiction.

Carnival now appeals.

II. STANDARD OF REVIEW

We review de novo the grant of a motion to dismiss for lack of subject-matter

jurisdiction. Tundidor v. Miami-Dade Cty.,

831 F.3d 1328, 1331

 (11th Cir. 2016).

In reviewing a facial challenge to a complaint, we consider only the allegations in

the complaint, accepting them as true for this purpose. McElmurray v. Consol. Gov’t

of Augusta-Richmond Cty.,

501 F.3d 1244, 1251

 (11th Cir. 2007). Finally, we

review de novo the interpretation of a contract. Grange Mut. Cas. Co. v. Woodard,

861 F.3d 1224, 1230

(11th Cir. 2017).

III. DISCUSSION

This case comes before us in a peculiar procedural posture, with DeRoy’s tacit

invocation of federal jurisdiction—by filing her complaint in the district court—

coupled with DeRoy’s explicit disavowal of federal jurisdiction in her allegations

8
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and claim for relief. 10 But regardless of what a complaint may say about a court’s

jurisdiction to entertain it, as we explain below, we look beyond the labels to the

underlying facts of the complaint to evaluate jurisdiction.11

Here, the complaint alleges a simple personal-injury claim by a cruise-ship

passenger who broke her foot while onboard Carnival’s Valor. In dealing with

claims like this, our precedent establishes four key principles that we must apply:

(1) this type of claim falls comfortably within the admiralty jurisdiction of the

district court; (2) a plaintiff need not expressly invoke admiralty jurisdiction for a

10
After the district court entered its order dismissing DeRoy’s complaint, at least two other
plaintiffs followed in her footsteps by filing their own complaints seeking immediate dismissal for
want of jurisdiction. See Diaz v. BPCL Mgmt., No. 18-cv-61379-BB (S.D. Fla. Jun. 19, 2018);
Siliakus v. Carnival Corp., No. 18-cv-25137-UU (Dec. 6, 2018).
11
Carnival invites us to analyze the jurisdiction issue by analogizing to the artful-pleading
doctrine. We decline to do so. That doctrine pertains to the right of a defendant to remove a cause
of action over which federal subject-matter jurisdiction exists, despite the “artful pleading” or
labels utilized by a plaintiff in the state court pleadings. See Roe v. Michelin N. Am., Inc.,

613 F.3d 1058, 1064

 (11th Cir. 2010); Pretka v. Kolter City Plaza II, Inc.,

608 F.3d 744, 766

 (11th Cir.
2010). According to the artful-pleading doctrine, a plaintiff who files suit in state court may not
defeat removal simply by “omitting to plead necessary federal questions.” Rivet v. Regions Bank
of La.,

522 U.S. 470, 475

 (1998) (quoting Franchise Tax Bd. of Cal. v. Construction Laborers
Vacation Trust for S. Cal.,

463 U.S. 1, 22

 (1983)). “If a court concludes that a plaintiff has ‘artfully
pleaded’ claims in this fashion, it may uphold removal even though no federal question appears on
the face of the plaintiff’s complaint.”