             Case: 20-10332     Date Filed: 08/14/2020   Page: 1 of 7



                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 20-10332
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:19-cv-21950-DPG


GORDON APPLEBY,

                                                               Plaintiff - Appellee,

                                     versus

NCL (BAHAMAS), LTD.,
d.b.a. Norwegian Cruise Line,

                                                            Defendant - Appellant.

                         ________________________

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

                                (August 14, 2020)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Gordon Appleby was injured at sea in June 2018 while he was a cruise

passenger onboard the Norwegian Cruise Line (“NCL”) Bliss ship. To recover for

his injuries, Appleby sued NCL for negligence in both state and federal court.

Recognizing that he was bound by a forum-selection clause in his ticket contract

with NCL, which required him to bring any claim in the United States District Court

for the Southern District of Florida if it was jurisdictionally possible to do so,

Appleby filed a complaint in that federal court. Among other things, the complaint

demanded a jury trial. Yet Appleby’s federal complaint largely attempted to

establish that the court lacked admiralty jurisdiction—the only potential basis for

jurisdiction—because he had elected to bring his claims at law and in personam—

not in admiralty. NCL answered Appleby’s complaint and did not challenge

Appleby’s demand for a jury trial.

       In the meantime, Appleby sought an order dismissing the federal case for lack

of jurisdiction so that he could pursue his negligence claim against NCL in state

court. Over NCL’s objections, the district court agreed with Appleby that the

complaint failed to establish federal subject-matter jurisdiction and dismissed the

federal complaint without prejudice. NCL appeals, and we reverse. 1




       1
         We review de novo a dismissal for lack of subject-matter jurisdiction. DeRoy v. Carnival
Corp., 963 F.3d 1302, 1309 (11th Cir. 2020).
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      After this appeal was filed, we issued a published opinion in a nearly identical

case foreclosing this type of forum-shopping. See DeRoy v. Carnival Corporation,

963 F.3d 1302 (11th Cir. 2020). In DeRoy, a cruise-ship passenger who was injured

at sea simultaneously filed suit in state and federal court and attempted to plead her

federal complaint to avoid invoking federal jurisdiction. Id. at 1308–09. The

plaintiff, DeRoy, maintained that diversity jurisdiction was lacking because the

parties were not diverse, that her negligence claim did not arise under federal law,

and that admiralty jurisdiction did not exist because she had elected to bring her

negligence claims in personam and at law—not in admiralty. Id. The district court

found these arguments persuasive and dismissed the federal lawsuit. Id. at 1309.

      We reversed, reaching four key conclusions. Id. at 1311–17. First, we held

that admiralty jurisdiction under § 1333 extends to personal-injury claims that arise

from incidents that occur onboard cruise ships at sea. Id. at 1311–12; see Caron v.

NCL (Bahamas), Ltd., 910 F.3d 1359, 1365 (11th Cir. 2018) (“Personal-injury

claims by cruise ship passengers, complaining of injuries suffered at sea, are within

the admiralty jurisdiction of the district courts.”). Because DeRoy’s injury occurred

while she was a passenger on a cruise ship traveling at sea, her negligence claim was

within the district court’s admiralty jurisdiction. DeRoy, 963 F.3d at 1312.

      Second, we held that the failure to expressly invoke admiralty jurisdiction in

federal court does not prevent the court from exercising admiralty jurisdiction where


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“admiralty is the only basis for jurisdiction.” Id. We explained that “[a]dmiralty

jurisdiction turns on the facts and substance of the claims alleged in the complaint,”

id. at 1313 (emphasis in original), which the court must consider sua sponte even if

“the parties disclaim or fail to present requirements that go to the existence of

subject-matter jurisdiction,” id. at 1311. Furthermore, “[a]lthough [Fed. R. Civ. P.]

9(h) allows a plaintiff in a maritime case to choose whether to proceed at law or in

admiralty, that choice is available only if there is a choice to be made—that is, if the

plaintiff has a separate basis for subject-matter jurisdiction other than admiralty.”

Id. at 1312. So “when admiralty jurisdiction is the only basis for jurisdiction, then

admiralty jurisdiction applies, regardless of how the plaintiff designates her case.”

Id. In light of these principles, we concluded that the district court enjoyed admiralty

jurisdiction over DeRoy’s complaint, despite her active efforts to disclaim admiralty

jurisdiction, because it was “the only basis for federal jurisdiction under the facts

and substance of [her] complaint.” Id. at 1313.

       Third, we held that 28 U.S.C. § 1333’s “saving-to-suitors” clause 2 did not

affect the district court’s admiralty jurisdiction—“at least not when the defendant

agrees to a jury trial.” Id. at 1314. We noted that this clause “generally provides a

plaintiff in a maritime case alleging an in personam claim three options: (1) the


       2
         Under 28 U.S.C. § 1333 district courts have exclusive jurisdiction of “[a]ny civil case of
admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they
are otherwise entitled.” 28 U.S.C. § 1333(1) (emphasis added).
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plaintiff may file suit in federal court under admiralty jurisdiction . . . ; (2) the

plaintiff may file suit in federal court under diversity jurisdiction; or (3) the plaintiff

may file suit in state court.” Id. (quotation marks omitted). So the clause “allowed

DeRoy to choose to file her claim exclusively in state court.” Id. But we explained

that this clause does not “authorize a plaintiff who files in federal court to escape or

sabotage existing admiralty jurisdiction by simply labeling her claims ‘at law,’ rather

than ‘in admiralty.’” Id. Nor is that clause’s impact on removal jurisdiction relevant

where a plaintiff voluntarily files in federal court. See id. at 1314–15. Because

DeRoy voluntarily filed in federal court and alleged sufficient facts to satisfy

admiralty jurisdiction, we reasoned, “the district court had admiralty jurisdiction

over DeRoy’s maritime negligence claim, regardless of the saving-to-suitors

clause.” Id. at 1315.

       Finally, we held that the forum-selection clause required DeRoy to “sue in

Miami federal district court when her claims are amenable to federal jurisdiction.”

Id. at 1315. Because the plaintiff’s claim was amenable to suit in federal court, she

could not escape the forum-selection clause by “simply refus[ing] to set forth the

correct federal jurisdictional ground.” Id. at 1316. We declined to “effectively

repudiate a valid forum-selection clause by allowing a plaintiff to circumvent it by

refusing to acknowledge the correct basis for federal jurisdiction over her case.” Id.




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      All of these conclusions apply with equal force to this case, which is

materially indistinguishable from DeRoy. First, the district court had admiralty

jurisdiction over Appleby’s negligence claim because he “suffered [his] injury while

participating as a passenger on a cruise, which is a traditional maritime activity.” Id.

at 1312. Second, the district court enjoyed admiralty jurisdiction because it was “the

only basis for federal jurisdiction under the facts and substance of [his] complaint,”

and Appleby cannot “escape or sabotage existing admiralty jurisdiction by simply

labeling [his] claims ‘at law,’ rather than ‘in admiralty.’” Id. at 1313–14. Third, the

saving-to-suitors clause did not affect the district court’s jurisdiction because

Appleby voluntarily filed in federal court and “alleged sufficient facts to satisfy

admiralty jurisdiction,” and NCL did not oppose Appleby’s demand for a jury trial.

Id. at 1314, 1315. Finally, the forum-selection clause required Appleby to file in

federal court any claims over which federal jurisdiction could exist if properly

pleaded. Id. at 1315–16. Because Appleby’s claim “is capable of being pleaded to

satisfy federal jurisdiction (and was, in fact, pleaded that way), the claim must

proceed, if at all, in federal court.” Id. at 1317.

      For these reasons, and as explained more fully in DeRoy, the district court

enjoyed admiralty subject-matter jurisdiction over Appleby’s complaint.             We

therefore reverse the order dismissing the complaint for lack of subject-matter

jurisdiction and remand for further proceedings consistent with this opinion.


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REVERSED AND REMANDED.




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