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Ruthledge v. NCL (Bahamas) Ltd.

United States Court of Appeals, Eleventh Circuit
Dec 15, 2009
356 F. App'x 357 (11th Cir. 2009)

Summary

finding district court converted motion to dismiss to summary judgment motion when it relied on defendant's affidavit, which contradicted allegations in complaint

Summary of this case from Bongino v. Daily Beast Co.

Opinion

No. 09-12028.

December 15, 2009.

Jennifer N. Willis, Willis and Buckley, New Orleans, LA, Arnaldo Velez, Miami, FL, for Plaintiff-Appellant.

Valentina M. Tejera, Rachel S. Cohen, Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 08-21412-CV-JEM.

Before WILSON and ANDERSON, Circuit Judges, and RESTANI, Judge.

Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, setting by designation.


After oral argument and careful consideration, we conclude that the judgment of the district court is due to be vacated and this case remanded for further proceedings. The district court granted the Defendant's Motion to Dismiss with Prejudice based on its assumption that it was undisputed that the condition precedent in the passenger ticket contract (barring suit unless the Defendant was given written notice 185 days from the incident) was enforceable but was not satisfied. However, in the Federal Rule of Civil Procedure 12 posture of the case, the district court was obligated to accept as true the Plaintiffs allegation that "[a]ll conditions precedent to the bringing of this action . . . have been performed, excused or waived." Complaint at ¶ 8.

The Defendant is the cruise line on whose ship the Plaintiff was injured.

It is true that Defendant's Motion to Dismiss attached an affidavit asserting that Defendant did not receive written notice of Plaintiffs claim within 185 days. However, to the extent that the district court relied upon that affidavit, the court in effect converted the posture of the case to a summary judgment posture without giving the express 10 day notice required by the Rules and by Jones v. Automobile Ins. Co. of Hartford, Conn., 917 F.2d 1528 (11th Cir. 1990).

Contrary to Defendant's argument, we cannot conclude that Plaintiff waived the 10 day notice required by Jones. Nor can we conclude that the district court's error is harmless. See Property Management Invs. v. Lewis, 752 F.2d 599, 605 (11th Cir. 1985) (finding the error there harmless in that "unique case only because a careful review of the record persuades us that all of the parties were well aware that the judge was converting this 12(b)(6) motion and that the parties made all the arguments and submitted all the documents that they would have presented had they received the notice to which they were entitled").

Accordingly, the judgment of the district court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

VACATED and REMANDED.


Summaries of

Ruthledge v. NCL (Bahamas) Ltd.

United States Court of Appeals, Eleventh Circuit
Dec 15, 2009
356 F. App'x 357 (11th Cir. 2009)

finding district court converted motion to dismiss to summary judgment motion when it relied on defendant's affidavit, which contradicted allegations in complaint

Summary of this case from Bongino v. Daily Beast Co.
Case details for

Ruthledge v. NCL (Bahamas) Ltd.

Case Details

Full title:Ada Mae RUTHLEDGE, Plaintiff-Appellant, v. NCL (BAHAMAS) LTD., a foreign…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Dec 15, 2009

Citations

356 F. App'x 357 (11th Cir. 2009)

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