Tara McCluskey El v. Celebrity Cruises, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14139
Non-Argument Calendar
____________________
TARA MCCLUSKEY EL,
Plaintiff - Appellant,
versus
CELEBRITY CRUISES, INC.,
Defendant - Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24706-KMW
____________________
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2 Opinion of the Court 21-14139
Before R OSENBAUM , JILL PRYOR , and GRANT, Circuit Judges.
PER CURIAM:
Tara McCluskey El, proceeding pro se, sued Celebrity
Cruises alleging negligence after a slip-and-fall accident on a cruise
ship. We affirm the district court’s grant of summary judgment for
Celebrity, as the action was filed outside the contractually agreed
upon statute of limitations, and McCluskey El had constructive
notice of that contract even if she never read it. None of
McCluskey El’s arguments for equitable tolling are persuasive.
And the district court did not abuse its discretion by denying
McCluskey El’s post-judgment motions for reconsideration and to
amend. We affirm the lower court in full.
I.
McCluskey El—a California native—slipped and fell while
exiting the jacuzzi on September 29, 2019 during a cruise around
Spain. She sued the ship’s operator, Celebrity Cruises, for
negligence in November 2020. Her complaint notes that she is
“submitting my claim a short time after September 29, 2020” due
to the COVID-19 pandemic and her injury. Celebrity moved to
dismiss, attaching a copy of the contract included with each ticket
sale and an affidavit from an employee of Celebrity’s parent
company. The contract bore the name Tara McCluskey, and said
that maritime tort actions must be filed within one year of the date
they occurred. And the affidavit explained that several days before
the cruise, Life Journeys—who McCluskey El paid to book and
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21-14139 Opinion of the Court 3
arrange her cruise as part of a group—requested (and received) a
copy of the contract. The affidavit also states that the contract was
always accessible on Celebrity’s website.
McCluskey El asserted in a sworn statement that she neither
received the contract pre- or post-cruise nor had an opportunity to
become meaningfully informed about its modification to the
default statute of limitations. But a forum selection clause in the
contract required her to bring suit in the Southern District of
Florida, which she did. Alternatively, she argued that the
contractually imposed statute of limitations should be equitably
tolled because the contract was unconscionable, because of the
pandemic, because an attorney she consulted with said
(incorrectly) that she had two years to file her claim, and because
Celebrity failed to inform her about the statute of limitations.
While she argues on appeal that she could have filed her complaint
in California state court, where some statutes of limitations were
equitably tolled during the pandemic, she did not raise this
argument in the district court.
The district court appointed a magistrate judge to consider
the case, who construed the motion to dismiss as one for summary
judgment under Federal Rule of Civil Procedure 12(d). The
magistrate judge gave McCluskey El multiple opportunities to
submit whatever evidence she wished. Ultimately, she
recommended summary judgment for Celebrity. She found that
Life Journeys was McCluskey El’s agent, and that she had
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4 Opinion of the Court 21-14139
constructive notice of the contract when it was sent to Life
Journeys. Alternatively, the magistrate judge noted that the
contract was publicly available for viewing before, during, and after
the cruise on Celebrity’s website. What mattered was the
opportunity to read the contract, not whether McCluskey El had
done so. Finding McCluskey El’s equitable tolling arguments
equally unpersuasive, the district court accepted the
recommendation and granted summary judgment for Celebrity.
McCluskey El moved for reconsideration, which the district
court denied for substantially the same reasons as its initial
judgment. She also moved to amend that motion for
reconsideration and to correct a clerical error. The district court
denied this as moot given the earlier dismissal of the
reconsideration motion. McCluskey El timely appealed the district
court’s decisions on these two motions, alongside its grant of
summary judgment for Celebrity.
II.
This Court reviews de novo the district court’s grant of
summary judgment.
Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1314 (11th Cir. 2011). Whether the terms of a
cruise-ticket contract were adequately communicated to
passengers is a question of law, so we review it de novo—just like
our review of a district court’s decisions about equitable tolling.
See Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1567 (11th Cir.
1990);
Chang v. Carnival Corp., 839 F.3d 993, 996 n.4 (11th Cir.
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21-14139 Opinion of the Court 5
2016). Conversely, we consider denials of motions to reconsider,
amend, or correct clerical errors for abuse of discretion.
See
Lambert v. Fulton Cnty., Georgia, 253 F.3d 588, 598 (11th Cir.
2001);
Stansell v. López, 40 F.4th 1308, 1311 (11th Cir. 2022).
III.
McCluskey El is correct that in general, there is a three-year
statute of limitations to file maritime tort actions. 46 U.S.C. §
30106. However, federal statute permits parties to adjust that time
period via contract. 46 U.S.C. § 30526(b)(2). Such adjustments are
valid if they are reasonably communicated to passengers.
See
Krenkel v. Kerzner Int’l Hotels, Ltd., 579 F.3d 1279, 1281 (11th Cir.
2009). So here, we assess if McCluskey El had the ability to become
meaningfully informed of the contract’s terms and to reject them
(though non-negotiated contracts are acceptable).
Id.
Our precedent states that whether a passenger “chose to
avail themselves of the notices and to read the terms and conditions
is not relevant to the reasonable communicativeness inquiry.”
Est.
of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1246 n.42
(11th Cir. 2012),
superseded by statute on other grounds as stated
in Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1364 n.2 (11th Cir.
2018). The magistrate judge was correct in assessing whether
McCluskey El had the
opportunity to read it. Providing those
terms in a travel packet was such an opportunity.
Id. at 1246.
Here, Life Journeys received that packet, not McCluskey El.
While McCluskey El disputes how to label her relationship with
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6 Opinion of the Court 21-14139
Life Journeys, she does not dispute the substance of it—she paid
the company to book and pay for her ticket on the vessel, which it
did. And the record is full of examples of McCluskey El
communicating with, and issuing specific instructions to, Life
Journeys. That is the quintessential principal-agent relationship
between a travel agent and their client.
See, e.g.,
Stevens v.
Premier Cruises, Inc., 215 F.3d 1237, 1238 (11th Cir. 2000). We
generally hold that constructive notice exists when an agent
accepts contract documents on behalf of their principal.
See, e.g.,
Windward Traders, Ltd. v. Fred S. James & Co., 855 F.2d 814, 820
(11th Cir. 1988). Here, that notice to the agent is sufficient to
provide constructive notice to McCluskey El.
Even if not, we agree with the district court that McCluskey
El never argued that anything prohibited her from accessing the
terms of the contract online before, during, or after embarking on
the cruise or suffering her alleged injuries. In short, there is no
evidence that McCluskey El lacked constructive knowledge about
the one-year statute of limitations in the ticket contract.1 To the
1 McCluskey El argues that the affidavit was improperly considered, which
created cumulative error. We need not decide whether cumulative error
could apply in a civil case, because on appeal she only identifies this one error,
which by definition is not cumulative.
United States v. Leonard, 4 F.4th 1134,
1147 (11th Cir. 2021). And regardless, the district court properly considered
Celebrity’s affidavit. McCluskey El first objected to the entire affidavit in her
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21-14139 Opinion of the Court 7
contrary, she expressed familiarity with the contract in her
complaint, which was filed in the correct venue and attempted to
justify why it was submitted more than one year after the accident.
Given that notice, the district court correctly concluded that
McCluskey El’s suit was untimely under the agreed-upon statute
of limitations.
And we agree that none of McCluskey El’s equitable tolling
arguments are compelling, as “tolling is an extraordinary remedy
amended response to the defendant’s motion to dismiss. But in a subsequent
sworn statement, McCluskey El did not dispute Celebrity’s claims in the
affidavit that it provided the contract to Life Journeys before the cruise. And
rather than dispute the existence of an online contract, she only asks “[h]ow
would Plaintiff know” about it. Finally, in her objections to the report and
recommendation and on appeal, she asserts that the entire affidavit is
fraudulent. Her bare and baseless assertions of fraud, unsupported by fact or
legal arguments, are abandoned.
Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681–82 (11th Cir. 2014). On appeal, she does not raise any arguments
about the legally relevant portions of the affidavit—that Celebrity emailed Life
Journeys the contract before the cruise, and that it was available on the website
regardless—other than fraud. That is a sufficient reason to affirm, as “issues
not briefed on appeal by a
pro se litigant are deemed abandoned.”
Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Even if we considered her
arguments disputing the substance of the affidavit, McCluskey El’s sworn
statement never disputes the affidavit’s legally relevant claims—she only
denies knowledge of the online contract, and asserts that she cannot verify that
Celebrity emailed Life Journeys the contract. Drawing inferences in
McCluskey El’s favor and assuming that she did not read either the online or
emailed contract, she still had several reasonable opportunities to become
informed of the terms if she chose to do so.
See Est. of Myhra, 695 F.3d at
1246 n.42.
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8 Opinion of the Court 21-14139
which should be extended only sparingly.”
Justice v. United States,
6 F.3d 1474, 1479 (11th Cir. 1993).
First, the contract was not
unconscionable. Federal statute explicitly permits parties to use
contracts to agree to a one-year statute of limitations for maritime
tort actions. 46 U.S.C. § 30526(b)(2). We have interpreted that
statute to be valid.
Nash, 901 F.2d at 1566.
Second, generalized assertions that the COVID-19 pandemic
was a just cause for equitable tolling are insufficient. McCluskey El
identifies no Eleventh Circuit precedent where the pandemic
resulted in equitable tolling of a statute of limitations. To the
contrary, as the lower court noted, McCluskey El “filed her
Complaint despite these obstacles, without an attorney, in the
midst of the pandemic, in November 2020.” Nor did she assert any
individualized facts about her situation that would make her case
analogous to past instances where we have waived the statute of
limitations in the maritime tort context.
See, e.g.,
Booth v.
Carnival Corp., 522 F.3d 1148, 1149–50 (11th Cir. 2008).
Third, though McCluskey El points out that California state
courts waived statutes of limitations for 180 days in response to the
pandemic, that argument is legally irrelevant. She first raised this
issue on appeal, which is too late to preserve it.
Walker v. Jones,
10 F.3d 1569, 1572 (11th Cir. 1994). And, in any event, California is
not in the Eleventh Circuit—its state-court decisions are persuasive
authority at best for this Federal Court of Appeals.
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21-14139 Opinion of the Court 9
Fourth, it is unfortunate for McCluskey El that an attorney
she spoke with erroneously told her she had two years to file her
claim. But this kind of error is insufficient to create equitable
tolling.
Cadet v. Florida Dep’t of Corr., 853 F.3d 1216, 1227 (11th
Cir. 2017).
Finally, McCluskey El argues that Celebrity did not tell her
about the statute of limitations, even when it knew that she
intended to file a claim. But would-be defendants are under no
duty to inform potential plaintiffs that the statute of limitations is
running.
Raziano v. United States, 999 F.2d 1539, 1542 (11th Cir.
1993). The district court correctly determined that each of these
arguments was an insufficient basis to equitably toll the statute of
limitations, and dismissal of the action as untimely was thus
proper.
As for the post-judgment motions, we likewise find no error.
There was no newly discovered evidence or manifest errors of law
or fact, so the district court properly denied McCluskey El’s motion
for reconsideration.
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007). These motions may not be used to relitigate matters “that
could have been raised prior to the entry of judgment.”
Michael
Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005).
And the later motion to correct and amend the reconsideration
motion impermissibly attempted to correct substantive errors, so
it was also properly denied.
See Stansell, 40 F.4th at 1311.
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10 Opinion of the Court 21-14139
* * *
We AFFIRM the district court’s grant of summary judgment
for Celebrity Cruises, and its denial of McCluskey El’s subsequent
motions.
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