                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           Dec. 15, 2009
                                      No. 09-12028
                                                                         THOMAS K. KAHN
                               ________________________
                                                                             CLERK

                          D. C. Docket No. 08-21412-CV-JEM

ADA MAE RUTHLEDGE,

                                                                           Plaintiff-Appellant,

                                             versus

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

                                                                         Defendant-Appellee.

                               ________________________

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

                                    (December 15, 2009)

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



       *
                Honorable Jane A. Restani, Chief Judge, United States Court of International
Trade, sitting by designation.
PER CURIAM:

      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’s1 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 Plaintiff’s allegation that “[a]ll

conditions precedent to the bringing of this action . . . have been performed,

excused or waived.” Complaint at ¶ 8.

      It is true that Defendant’s Motion to Dismiss attached an affidavit asserting

that Defendant did not receive written notice of Plaintiff’s 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


      1
             The Defendant is the cruise line on whose ship the Plaintiff was injured.

                                               2
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.




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