Levari et al v. Carnival Corporation

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-22777-BLOOM/Elfenbein
ADAM LEVARI,
Plaintiff,
v.
CARNIVAL CORPORATION,
a Foreign Profit Corporation d/b/a
CARNIVAL CRUISE LINES,
Defendant.
_________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Carnival Corporation’s Motion to
Dismiss Plaintiff’s Second Amended Complaint (“Motion”), ECF No. [29], filed on September 8,
2025. Plaintiff Adam Levari filed a Response in Opposition to Defendant’s Motion (“Response”),
ECF No. [30], to which Defendant filed a Reply. ECF No. [31]. The Court has reviewed the
Motion, the supporting and opposing submissions, the applicable law, and is otherwise fully
advised. For the reasons set forth below, the Motion is granted in part and denied in part.
I. 	BACKGROUND
Plaintiff filed the instant action on June 19, 2025. ECF No. [1]. On August 16, 2025, the
Court granted Defendant’s first Motion to Dismiss and dismissed the Complaint without prejudice.
ECF No. [22]. On August 25, 2025, Plaintiff filed his Second1 Amended Complaint (“Complaint”)
against Defendant asserting claims of Negligence (Count I); Negligent Failure to Maintain (Count
1 Plaintiff improperly filed a First Amended Complaint, which the Court noted “fares no better” than the original
Complaint. ECF No. [22].
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II); and Negligent Failure to Warn (Count III). ECF No. [26]. The following facts are taken from
the Complaint.
On August 8, 2024, Plaintiff was a fare-paying passenger aboard the Defendant’s vessel,
Mardi Gras (“Vessel”). Id. ¶¶ 8, 11. While walking down the Vessel’s indoor glass-like winding
staircase in the high traffic area near the restaurants and pizzeria, Plaintiff slipped on a slippery
surface, without warning, and fell, fracturing his right ankle, and injuring his back, spine, and
wrist. Id. ¶ 12. Plaintiff had been holding the handrail as he went down the stairs. Id. ¶ 13. He was
walking in a public area of the Vessel near restaurants, bars, and the promenade, and where
passengers are invited and expected to be during the cruise. Id. ¶ 14. Defendant knew or should
have known of the unreasonable slipperiness of the steps where the Plaintiff fell because other
passengers in the vicinity also remarked that the steps were dangerous, and the dangerous condition
existed for over 15 to 20 minutes. Id. ¶ 17. Crewmembers in the immediate area of the glass
staircase where Plaintiff fell could have observed the hazard and taken proactive steps to eliminate
it. Id. ¶ 26.
Plaintiff alleges that Defendant has known for many years prior to Plaintiff’s cruise that
slipping hazards on the staircases aboard its cruise ships are a constant source of injury to its
passengers. Id. ¶ 18. Defendant is on notice of the hazard of unreasonably slippery surfaces in the
high traffic area where Plaintiff fell because its internal training documents state that proactive
crewmembers can, and should, reduce the risk and occurrence of these known incidents by
responding quickly to clean up spills and clean and cordon off the area as needed. Id. ¶ 23.
Additionally, Defendant’s written materials used to train its crewmembers identify the hazard of
spilling fluids and tracking them onto corridors and staircases. Id. ¶ 24. The written materials
instruct the crewmembers to “own the spill,” immediately wipe up spills, and to take responsibility
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for their stations in restaurants, lounges, and along the Vessel’s promenade. Id. ¶ 25. Defendant’s
Health, Environmental, Safety, and Security (“HESS”) procedures recognize and identify the need
to keep interior floors dry, especially in areas exposed to heavy traffic and food and drink
consumption, such as the area where Plaintiff fell, and require a methodology to ensure floor
cleanliness and contamination prevention. Id. ¶¶ 29, 30. Plaintiff alleges that Defendant is also on
notice of prior substantially similar slip-and-fall incidents and cites to Holland v. Carnival Corp.,
50 F. 4th 1088, 1095 (11th Cir. 2022). Id. ¶ 33.
In Count I, Plaintiff contends Defendant owed him a duty to provide reasonable care under
the circumstances to maintain and operate its Vessel in a reasonably safe condition. Id. ¶ 36.
Defendant breached its duty in one or more of the following ways:
a. 	Failure to utilize a reasonably safe flooring surface in the stairway where
Plaintiff fell;
b. 	Failure to adequately and regularly inspect the floor and stairway where
Plaintiff fell, for wet and slippery conditions;
c. 	Failure to adequately test the coefficient of friction and slip resistance of the
flooring surface and stairway where Plaintiff fell before opening it up to
passengers and the Plaintiff;
d. 	Failure to incorporate applicable standards, including the Americans with
Disabilities Act (ADA) to changes in level open to passengers like Plaintiff;
e. 	Failure to promulgate and/or enforce adequate policies and procedures to ensure
that the flooring surface and stairway where Plaintiff fell are adequately and
regularly inspected, monitored, cleaned and maintained free of hazardous
conditions;
f. 	Failure to ascertain the cause of prior similar accidents happening on any of the
Defendant’s vessels, fleet wide, so as to take adequate measures to prevent their
reoccurrence, and more particularly Plaintiff’s incident; and
g. 	Through other acts or omissions constituting a breach of the duty to use
reasonable care which will be revealed through discovery.
Id. ¶ 38.
In Count II, Plaintiff alleges Defendant had a duty to maintain the flooring surface and
stairway where Plaintiff fell in a reasonably safe condition. Id. ¶ 44. Plaintiff alleges Defendant
breached this duty in one or more of the following ways:
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a. 	Failing to keep and maintain its floors and stairways free of transitory foreign
substances, 	which 	would 	prevent 	a 	slipping 	hazard 	to 	its 	passengers,
particularly in the area where Plaintiff fell;
b. 	Failure to maintain the flooring surface and stairway where Plaintiff fell, in a
clean and reasonably safe condition;
c. 	Failure to adequately and regularly inspect and monitor the flooring surface and
stairway where Plaintiff fell, to maintain it free of unreasonably hazardous and
slippery conditions;
d. 	Failure to regularly and adequately clean the flooring surface and stairway
where Plaintiff fell;
e. 	Failure to prevent transitory foreign substances from entering the stairway in
the area where Plaintiff fell;
f. 	Failure to analyze prior slip-and-fall accidents and correct hazardous conditions
following substantially similar slip-and-fall accidents on any of the Defendant’s
vessels, fleet-wide; and
g. 	Failure to adequately inspect and/or maintain the area where Plaintiff fell in a
reasonably safe condition, one that would negate or substantially limit the risks
posed to Plaintiff at the time of use.
Id. ¶ 45.
Count III alleges Defendant had a duty to warn passengers like Plaintiff of dangers that
were known, or reasonably should have been known, to Defendant in places where passengers like
Plaintiff are invited to or may reasonably be expected to visit. Id. ¶ 51. Defendant breached this
duty in one or more of the following ways:
a. 	Failure to warn Plaintiff about the slippery wet conditions on the flooring
surface and stairway where Plaintiff fell, which was known to and/or created
by Defendant;
b. 	Failure to warn that the flooring surface and stairway where Plaintiff fell
becomes unreasonably hazardous and slippery; and/or
c. 	Failure to cordon off and/or place warning signs on or around the unreasonably
hazardous and slippery flooring surface and stairway where Plaintiff fell.
Id. ¶ 53.
Plaintiff also requests an advisory jury pursuant to Rule 39(c). Id. ¶¶ 42, 49, 57.
Defendant argues the Complaint should be dismissed because (1) Plaintiff has commingled
multiple causes of action within a single general negligence count; (2) allegations within the
Complaint advance a negligent mode of operation claim, which is not a cognizable cause of action
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under General Maritime Law; (3) Plaintiff fails to proffer sufficient allegations to establish
Defendant’s notice of the alleged dangerous condition; and (4) Plaintiff’s request for an advisory
jury is improper because Plaintiff has proffered no unique or compelling circumstances
necessitating the assistance of an advisory jury. ECF No. [29].
Plaintiff responds that the Complaint is not a shotgun pleading, does not contain an
impermissible stand-alone claim for negligent mode of operation, and contains sufficient factual
allegations to plead Defendant had actual or constructive notice to survive a motion to dismiss.
ECF No. [30]. In Reply, Defendant maintains that the Complaint is a shotgun pleading, Plaintiff’s
allegations clearly advance a negligent mode of operation claim, and that Plaintiff fails to plead
sufficient factual allegations to establish Defendant’s notice of the alleged dangerous condition.
ECF No. [31].
II. 	LEGAL STANDARD
A. Failure to State a Claim
A pleading must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual
allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading standard
“demands 	more 	than 	an 	unadorned, 	the-defendant-unlawfully-harmed-me 	accusation”).
Additionally, a complaint may not rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “Factual allegations
must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555.
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If the allegations satisfy the elements of the claims asserted, a defendant’s motion to dismiss must
be denied. See id. at 556.
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe
of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002);
AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009)
(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving
party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.
B. General Maritime Law
In cases involving alleged torts “committed aboard a ship sailing in navigable waters,” the
applicable substantive law is general maritime law, the rules of which are developed by the federal
courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)); see also Everett v. Carnival
Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Because this is a maritime tort, federal
admiralty law should control. Even when the parties allege diversity of citizenship as the basis of
the federal court’s jurisdiction (as they did in this case), if the injury occurred on navigable waters,
federal maritime law governs the substantive issues in the case.”). In the absence of well-developed
maritime law, courts may supplement the maritime law with general common law and state law
principles. See Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla.
2011). “In analyzing a maritime tort case, [courts] rely on general principles of negligence law.”
Chaparro, 693 F.3d at 1336 (quoting Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir.
1980)).
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C. Shotgun Pleading
“A complaint that fails to articulate claims with sufficient clarity to allow the defendant to
frame a responsive pleading [violates rule 8(a)(2) and] constitutes a ‘shotgun pleading.’” White v.
Carnival Corporation, No. 25-cv-20925, 2025 WL 1865127, at *2 (S.D. Fla. July 7, 2025)
(quoting Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008).
“Shotgun pleadings . . . exact an intolerable toll on the trial court’s docket, lead to unnecessary and
unchannelled discovery, and impose unwarranted expense on the litigants, the court and the court’s
parajudicial personnel and resources.” Jackson v. Bank of America, N.A., 898 F.3d 1348, 1356
(11th Cir. 2018) (quoting Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)).
The Eleventh Circuit has identified four types of shotgun pleadings, all of which “fail to
one degree or another . . . to give the defendants adequate notice of the claims against them and
the grounds upon which each claim rests.” Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d
1313, 1323 (11th Cir. 2015). The first and most common type is “a complaint containing multiple
counts where each count adopts the allegations of all preceding counts, causing each successive
count to carry all that came before and the last count to be a combination of the entire complaint.”
Id. at 1321. The second is “a complaint that does not commit the mortal sin of re-alleging all
preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and
immaterial facts not obviously connected to any particular cause of action.” Id. at 1322. The third
is “one that commits the sin of not separating into a different count each cause of action or claim
for relief.” Id. at 1323. The last type of shotgun pleading commits “the relatively rare sin of
asserting multiple claims against multiple defendants without specifying which of the defendants
are responsible for which acts or omissions, or which of the defendants the claim is brought
against.” Id.
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III. 	DISCUSSION
“To prevail on a negligence claim, a plaintiff must show 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 proximately caused the plaintiff’s injury, and (4) the plaintiff suffered actual harm.’”
Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quoting Chaparro, 693 F.3d
at 1336). The duty of reasonable care requires, “as a prerequisite to imposing liability, that the
carrier have had actual or constructive notice of the risk-creating condition.” Keefe, 867 F.2d at
1322. “In other words, a cruise ship operator’s duty is to shield passengers from known dangers
(and from dangers that should be known), whether by eliminating the risk or warning of it.”
Tesoriero v. Carnival Corp., 965 F.3d 1170, 1178 (11th Cir. 2020). Thus, a cruise-ship operator’s
liability often “hinges on whether it knew or should have known about the dangerous condition.”
Guevara, 920 F.3d at 720.
A. Count I - Negligence
Defendant first argues that Count I fails to separate into a different count each cause of
action and claim for relief. ECF No. [29] at 3. Defendant contends that, as pled, Count I advances
multiple distinct causes of action, including negligent selection and design, negligent failure to
inspect, and negligent mode of operation. Id. Plaintiff responds that his claims are permissible, and
“[a] plaintiff need not separate his claims where they arise out of the same transaction of
occurrence and defendants are provided with adequate notice.” ECF No. [30] at 4. Specifically,
Plaintiff argues that his Complaint “is in accordance with the . . . . Third Restatement of Torts
[which] distinguishes between failure to warn claims and negligent maintenance claims, as the
[Complaint] does.” Id. at 5 (citing Restatement (Third) of Torts § 51 cmt. k). Plaintiff urges that
the “key inquiry” in determining whether the Complaint is a shotgun pleading “is whether the
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‘failure to more precisely parcel out and identify the facts relevant to each claim materially
increase[s] the burden of understanding the factual allegations underlying each count.’” Id.
(quoting Weiland, 792 F.3d at 1320).
Plaintiff does not dispute that Count I advances a theory of negligence based on negligent
selection and design, negligent failure to inspect, and negligent mode of operation, but instead
argues that “evidence of Defendant’s practices and procedures in taking reasonable precautions is
relevant to establishing negligence.” ECF No. [30] at 7. Plaintiff cites to Green v. Carnival Corp.,
in which the court found that a claim for “negligent failure to follow procedures and policies” did
not constitute a shotgun pleading because the claim did not need to “be separated into different
counts. The factual allegations2 support[ed] the single count of negligent failure to follow policies
and procedures to keep the area in question safe for passengers.” 614 F. Supp. 3d 1257, 1268-69
(S.D. Fla. 2022).
A review of the Complaint readily reveals that Count I is a shotgun pleading. The
deficiency is not merely that Count I is titled “Negligence” instead of “Negligent Failure to Follow
Procedures and Policies,” as Plaintiff suggests. ECF No. [30] at 8 n.1. Rather, while Count I
includes some of the same allegations as those contained in Green, as it also impermissibly
advances additional theories of negligence, including negligent design and negligent mode of
operation. Each of those distinct causes of action have different elements and therefore must be
pled separately. The Complaint alleges Plaintiff was injured because of Defendant’s “[f]ailure to
utilize a reasonably safe flooring surface in the stairway where Plaintiff fell[.]” ECF No. [26] ¶ 38.
2 As Plaintiff notes, the allegations in the claim for “negligent failure to follow procedures and policies” were that
Defendant failed to “close off the dirty and/or slippery areas on the deck[,]” “correct hazardous conditions[,]”
“promulgate and/or enforce adequate procedures to keep the subject flooring area free of foreign transitory
substances[,]” and “adequately test the coefficient of friction and slip resistance of the flooring surface before opening
it up to passengers[.]” Green, 614 F. Supp. 3d at 1268.
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“However, to plead negligent design, a plaintiff must allege that ‘[Defendant] actually created,
participated in, or approved the negligent design[,]’” and that [Defendant] “had actual or
constructive notice of such hazardous condition.” ECF No. [31] at 2 (quoting Liles v. Carnival
Corp. & PLC, No. 22-cv-22977, 2023 WL 34644, at *2 (S.D. Fla. Jan. 4, 2023)).
Defendant also argues that “each count contains allegations advancing a negligent mode of
operation claim which is not recognized under general maritime law[,]” ECF No. [29] at 6. Plaintiff
responds that he does not improperly advance a “stand-alone claim for Negligent Mode of
Operation[,]” but that “[e]vidence of Defendant’s precautions to prevent foreseeable harm is
relevant to establish negligence[.]” ECF No. [30] at 6.
“A negligent mode of operation claim is recognized under Florida law as a claim that a
business created an unsafe environment through the manner in which it conducts its business.”
Malley v. Royal Caribbean Cruises Ltd, 713 F. App’x 905, 910 (11th Cir. 2017). Plaintiff’s
argument that “under a negligence theory, Plaintiff should be allowed to allege that the tortfeasor
did not take reasonable precautions to prevent the foreseeable harm” ECF No. [30] at 7, does not
address the fact that “[n]o court has ever held that [a negligent mode of operation] claim exists in
federal admiralty law.” 	Malley, 	713 	F. 	App’x 	at 	910. 	Indeed, 	“[a] 	basic 	attribute 	of
a negligent mode of operation claim is at odds with admiralty law’s requirement that a cruise ship
must have notice of the dangerous condition.” Id. Plaintiff cites Stewart-Patterson v. Celebrity
Cruises, Inc., to argue that “evidence of Defendant’s practices and procedures in taking reasonable
precautions is relevant to establishing negligence.” ECF No. [30] at 7 (citing Stewart-Patterson v.
Celebrity Cruises, Inc., No. 12-cv-20902, 2012 WL 2979032, at *3 (S.D. Fla. July 20, 2012)).
However, Stewart-Patterson did not expand upon these hypothetical situations in which evidence
of defendant’s practices and procedures may be relevant to establishing negligence and the court
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ultimately concluded that “Plaintiff’s claim for negligent mode of operation must be dismissed.”
Stewart-Patterson, 2012 WL 2979032, at *3. Here, Plaintiff alleges, as part of the negligence
claim, that Defendant failed to “promulgate and/or enforce adequate policies and procedures to
ensure that the flooring surface and stairway where Plaintiff fell are adequately and regularly
inspected, monitored, cleaned and maintained free of hazardous conditions.” ECF No. [26] ¶ 38.
Because Count I comingles multiple theories of liability, one of which is an impermissible
negligent mode of operation claim, Count I is dismissed with prejudice.
B. Counts II and III – Negligent Failure to Maintain and Negligent Failure to Warn
Regarding Counts II and III, Defendant first argues that “each count contains allegations
advancing a negligent mode of operation claim which is not recognized under general maritime
law.” ECF No. [29] at 6. However, Defendant does not clarify which allegations within Plaintiff’s
Failure to Maintain and Failure to Warn claims “focus[] on the company’s general policies and
operations, not on the specific incident in which the plaintiff was injured.” ECF No. [29] at 7
(quoting Malley, 713 F. App’x at 910). Indeed, all the allegations appear to be specific to Plaintiff’s
incident. Therefore, Plaintiff does not appear to be advancing a negligent mode of operation claim
within Counts II or III.
Next, Defendant contends that the remaining Counts should also be dismissed because
Plaintiff has failed to allege sufficient facts establishing Defendant’s notice of the alleged
dangerous condition. ECF No. [29] at 7. Plaintiff responds that he has properly alleged Defendant’s
actual or constructive notice of the unreasonable slipperiness of the walking surface on the glass
staircase. ECF No. [30] at 9, 11. Specifically, Plaintiff asserts that he has pled sufficient facts,
accepted as true, to allege notice by alleging that the hazardous condition on the stairs existed for
a sufficient length of time and that “substantially similar instances occurred in which ‘conditions
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substantially similar to the occurrence in question must have caused the prior accident.’” Id. at 9
(quoting Holland v. Carnival Corp., 50 F.4th 1088, 1095 (11th Cir. 2022).
As 	a 	prerequisite 	to 	imposing 	liability, 	Defendant 	must 	have 	had 	actual 	or
constructive notice of a risk-creating condition. Guevara, 920 F.3d at 720. Constructive notice can
be established “with evidence that the ‘defective condition exist[ed] for a sufficient period of time
to invite corrective measures” or “with evidence of substantially similar incidents in which
‘conditions substantially similar to the occurrence in question must have caused the prior
accident.’” Id. (quoting Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988)
and Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988)).
Regarding the allegation that Defendant was on notice of prior substantially similar slip-
and-fall incidents, Plaintiff cites Holland v. Carnival Corp. as a “substantially similar” incident in
which “the cruise passenger alleged he was injured when he slipped and fell while descending a
glass staircase in a highly trafficked area of the ship.” ECF No. [26] ¶ 33. Defendant argues that
these incidents were not substantially similar because the ship in Holland and the Vessel here “are
not sister class vessels. As such, the only prior incident cited by Plaintiff occurred on a completely
different vessel, a different deck, and a different staircase.” ECF No. [29] at 13-14. Plaintiff
responds that the existence of a single, substantially similar incident is sufficient at the motion to
dismiss stage. ECF No. [30] at 16 (citing Lopez v. Carnival Corp., No. 22-cv-21308, 2022 WL
4598657, at *3 (S.D. Fla. 2022)). Defendant’s argument that “Plaintiff proffers no factual
allegations beyond superficial resemblances between the subject incident and the alleged prior
incident[,]” speaks to the weight of the evidence, not whether Plaintiff has adequately alleged
notice. ECF No. [31] at 8. Indeed, as this Court previously held, “whether the alleged incidents are
in fact substantially similar as to give notice is an issue of fact, which the Court need not resolve
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at the dismissal stage.” Lopez, 2022 WL 4598657, at *3. Therefore, Plaintiff has sufficiently
alleged that Defendant was on notice of the defective condition.3
C. Advisory Jury
In the Complaint, Plaintiff requests an advisory jury pursuant to Federal Rule of Civil
Procedure 39(c). ECF No. [26] at 11, 13. Rule 39(c)4 states that where “an action not triable of
right by a jury, the court, on motion or on its own . . . may try any issue with an advisory jury[.]”
Fed. R. Civ. P. 39(c)(1). As Plaintiff recognizes, “[t]he Court’s decision on whether to use an
advisory jury is discretionary[.]” ECF No. [30] at 16. Defendant argues that an advisory jury is
unnecessary because “Plaintiff’s allegations are straightforward. He is claiming that he slipped and
fell on an interior staircase” and “has proffered no argument as to why this Honorable Court would
require the assistance of an advisory jury.” ECF No. [29] at 17. The Court agrees and denies
Plaintiff’s request for an advisory jury.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	Defendant’s Motion, ECF No. [29], is GRANTED in part and DENIED in part.
2. 	Count I of the Complaint is DISMISSED.
3. 	Defendant shall file an Answer to Counts II and III no later than December 29,
2025.
3 Because Plaintiff’s allegations with regard to the substantially similar incident are sufficient to support an inference
that Defendant had constructive notice, the Court need not address whether Plaintiff’s other allegations establish the
requisite notice. Lopez, 2022 WL 4598657, at *3 n.2.
4 Rule 39(c)(2) permits the Court to “try any issue by a jury whose verdict has the same effect as if a jury trial had
been a matter of right,” if the parties consent. Defendant has not consented to an advisory jury. Fed. R. Civ. P. 39(c)(2).
Therefore Rule 39(c)(2) is inapplicable.
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DONE AND ORDERED in Chambers at Miami, Florida, on December 15, 2025.
__________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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