           Case: 18-11647   Date Filed: 12/10/2018   Page: 1 of 12


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11647
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:17-cv-22827-MGC


MITCHELL MIORELLI
DANNAMARIE PROVOST,

                                                      Plaintiffs-Appellants,


                                  versus


MARKELL HALL, JR.,
ANGELO WILLIAMS, JR.,
JAQUES CLAY WILLIAMS,
ROYAL CARIBBEAN CRUISE LINES, LTD.,

                                                      Defendants-Appellees.

                       ________________________

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

                            (December 10, 2018)

Before WILLIAM PRYOR, GRANT, and HULL, Circuit Judges.

PER CURIAM:
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       Mitchell Miorelli was injured on a cruise ship operated by Royal Caribbean

Cruises Ltd. 1 He and his then-fiancée DannaMarie Provost filed a negligence suit

against Royal Caribbean almost 20 months later. The district court granted

summary judgment for Royal Caribbean based on the one-year limitation period

contained in the cruise ticket contract. Plaintiffs appeal that ruling, arguing that the

district court erred in determining that the contractual time limitation applied and

was not subject to equitable tolling. We affirm.

                                                I.

       In November 2015, Miorelli and Provost took a cruise on a Royal Caribbean

ship. Miorelli’s father purchased their cruise tickets through a travel agent. 2 At

the bottom of the front page of the Guest Ticket Booklet for Miorelli and Provost,

the following notice alerted passengers to the existence and importance of the

ticket contract:




1
  Named in the complaint as Royal Caribbean Cruise Line, Ltd.
2
  Although plaintiffs submitted affidavits stating that they never personally received their cruise
tickets, they did not contend in the district court that they did not have access to the tickets or
that they did not have an adequate opportunity to review the Contract terms. See Estate of
Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1246 n.42 (11th Cir. 2012) (whether the
plaintiffs “chose to avail themselves of the notices and to read the terms and conditions is not
relevant” to the question of whether the terms were reasonably communicated). To the extent
that they contend on appeal that they had no such opportunity, therefore, we decline to consider
that argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(“If we were to regularly address questions—particularly fact-bound issues—that district courts
never had a chance to examine, we would not only waste our resources, but also deviate from the
essential nature, purpose, and competence of an appellate court.”).
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 IMPORTANT NOTICE TO GUESTS:
Your Cruise/Cruisetour Ticket Contract is contained in this booklet. The Contract
contains important limitations on the rights of passengers. It is important that you
carefully read all the terms of this Contract, paying particular attention to section 3 and
sections 9 through 11, which limit our liability and your right to sue, and retain it for
future reference. This Agreement requires the use of arbitration for certain disputes
                                                                                               www.RoyalCaribbean.com
and waives any right to trial by jury to resolve those disputes.



         The Contract referenced in this front-page notice began on page 13 of the

Booklet. It was clearly labeled, in large, bold print: “Cruise/Cruisetour Ticket

Contract.” Immediately below this heading, another notice to passengers, written

in all-capital, bold-print letters and again drawing attention to the limitation-of-

liability provisions in the Contract, read:




The Contract that followed was written in the same size font as the notice, but

except for the referenced limitation-of-liability sections (sections 9 through 11), it

was printed in standard sentence case rather than all-capital letters.

         The first paragraph of section 10 of the Contract notified passengers that any

personal-injury lawsuit against Royal Caribbean would be barred unless the injured

passenger gave Royal Caribbean written notice of the claim within six months of

the injury and filed the lawsuit within one year:




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The text of the one-year limitation provision was written in the same size print as

the rest of the Contract, but like the “IMPORTANT NOTICE TO GUESTS” at the

beginning of the Contract and the surrounding sections related to liability, it was

printed in all-capital letters.

       On the third day of plaintiffs’ cruise, November 25, 2015, Miorelli got into a

physical altercation with three other passengers and sustained injuries. Six months

later, on May 31, 2016, an attorney retained by plaintiffs wrote to Royal Caribbean

to provide notice of their claims. In his letter, plaintiffs’ counsel discussed the

merits of their negligence claim against Royal Caribbean and stated that the letter

was “provided to you in accordance with Paragraph 10(a) of the Royal

Caribbean Cruise Line Contract. Injuries were suffered November 24, 2015.

It is our intention to file suit on or before November 24, 2016, in the United States

District Court for the Southern District of Florida unless reasonable settlement is

reached.” (emphasis in the original).

       On November 9, 2016—16 days before the expiration of the contractual

limitations period—a Royal Caribbean claims adjustor wrote to plaintiffs’ counsel,

inviting him to make a settlement demand. The letter contained the following

closing: “This letter, subsequent correspondence, discussions or negotiations are

in no way to be construed as either an admission of liability or as a waiver of any

rights, defenses or limitations available to the vessel, her owners or underwriters,


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whether contained in the ticket contract or otherwise.” Plaintiffs claim that they

thereafter attempted, without success, to engage Royal Caribbean in settlement

negotiations, but there is no record on appeal of any further presuit correspondence

between the parties.

       Plaintiffs filed suit against Royal Caribbean and the three other passengers

involved in the altercation with Miorelli on July 27, 2017. Royal Caribbean moved

to dismiss the complaint as barred by the one-year time limitation in the ticket

contract. The district court converted the motion to dismiss into a motion for

summary judgment and, after a hearing, granted the motion based on the

contractual time limit.

                                                II.

       We first address the question of the district court’s subject matter

jurisdiction. See Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ.,

663 F.3d 1304, 1304 (11th Cir. 2011) (“We are obligated to raise concerns about

the district court’s subject matter jurisdiction sua sponte.”). In response to our

jurisdictional question, 3 plaintiffs clarified that they wished to proceed on the basis


3
  The Complaint asserted that the district court had diversity jurisdiction, 28 U.S.C. § 1332, as
well as admiralty or maritime jurisdiction, but the facts alleged in the Complaint did not establish
complete diversity of the parties. We asked the parties to clarify (1) whether the district court’s
subject matter jurisdiction was based on diversity or admiralty, (2) the parties’ citizenship for
purposes of diversity jurisdiction, including Royal Caribbean’s place of incorporation, (3)
whether complete diversity existed, and (4) insofar as the allegations in the Complaint were
inadequate to establish diversity jurisdiction, whether and how the deficiencies could be
corrected. No. 18-11647-D, Jurisdictional Question issued May 22, 2018.
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of admiralty jurisdiction on all claims. We therefore granted plaintiffs’ motion to

amend their complaint to strike the diversity jurisdiction allegations and denied

Royal Caribbean’s motion to dismiss the appeal for lack of jurisdiction.

      The district court had admiralty jurisdiction over plaintiffs’ tort claims

because (1) the injury forming the basis for the claims occurred on navigable

waters, (2) the type of incident involved (injury from a fight among passengers

aboard a cruise ship) “has a potentially disruptive impact on maritime commerce,”

and (3) “the general character of the activity giving rise to the incident”—

transporting passengers aboard a cruise ship—“shows a substantial relationship to

traditional maritime activity.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900

(11th Cir. 2004) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 1048 (1995)). Thus, federal maritime law

applies to plaintiffs’ negligence claims. See id. at 902; Keefe v. Bahama Cruise

Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989).

                                         III.

      This Court reviews a district court’s grant of summary judgment de novo,

“construing the facts and all reasonable inferences from the facts in favor of the

nonmoving party.” Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d 1164,

1170 (11th Cir. 2018). A district court’s rulings on discovery motions, including

requests to delay ruling on a summary judgment motion to allow additional


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discovery, are reviewed for an abuse of discretion. See Iraola & CIA, S.A. v.

Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003).

      Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Stardust, 899 F.3d at 1170. A disputed fact

that is irrelevant to the dispositive issue raised by the movant is not material; only

“disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).

      Whether the terms of a cruise-ticket contract were adequately communicated

to passengers is a question of law that we review de novo. Nash v. Kloster Cruise

A/S, 901 F.2d 1565, 1567 (11th Cir. 1990). We also review de novo the district

court’s decision regarding the application of equitable tolling. Chang v. Carnival

Corp., 839 F.3d 993, 996 n.4 (11th Cir. 2016).

                                          A.

      Plaintiffs contend that the district court should have denied Royal

Caribbean’s motion for summary judgment as premature and allowed them to

conduct factual discovery regarding the altercation, Royal Caribbean’s shipboard

security practices, and alcohol consumption by the alleged assailants. But




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plaintiffs have not identified—in the district court or on appeal—any discovery

that they wished to conduct that was related to the timeliness of their lawsuit.

      A defendant may move for summary judgment “at any time” from the

commencement of the lawsuit until 30 days after the discovery period closes. Fed.

R. Civ. P. 56(b). While the nonmovant generally should be given an opportunity

to conduct relevant discovery before a motion for summary judgment is decided,

district courts are not required to postpone ruling until discovery is complete. Fla.

Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1316 (11th Cir. 1990).

A party seeking additional time for discovery may not rely on vague assertions that

more discovery is needed; instead, he must show that the discovery he seeks will

enable him to demonstrate the existence of a genuine issue of material fact. Id.;

Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 843 (11th Cir. 1989).

If the party cannot make such a showing, it is appropriate to proceed with the

summary judgment ruling even if the party has not yet conducted any discovery.

Reflectone, Inc., 862 F.2d at 843–44.

      Here, although plaintiffs claimed that they did not have all the facts

necessary to enable them to respond to Royal Caribbean’s motion for summary

judgment, the discovery that they proposed was related to the merits of their

negligence claim and irrelevant to the dispositive issue of timeliness raised by

Royal Caribbean. And while plaintiffs state—without explanation—that “there


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were sharply disputed issues of material fact,” they do not identify any genuine

factual dispute related to the timeliness of the lawsuit. The district court therefore

did not abuse its discretion in denying plaintiffs’ request to conduct discovery.

                                          B.

      Maritime tort claims like this one generally are subject to a three-year statute

of limitation. 46 U.S.C. § 30106. But the statute does not prohibit contracts

setting shorter limitation periods. Id.; see Heimeshoff v. Hartford Life & Acc. Ins.

Co., 571 U.S. 99, 107, 134 S. Ct. 604, 611 (2013) (absent a statutory prohibition of

such agreements, parties may set a shorter limitations period by contract than is

provided in the applicable statute of limitations). Under 46 U.S.C. § 30508(b)(2),

cruise lines may set a contractual time limit of no less than one year for bringing a

personal injury action. A valid contractual time bar is binding on the parties; there

is “‘no essential difference’” in that regard between a contractual limitation period

and one set by statute. Chang, 839 F.3d at 996 n.3 (quoting Bailey v. Carnival

Cruise Lines, Inc., 774 F.2d 1577, 1579 n.3 (11th Cir. 1985)).

      A limitation on the time for filing suit contained within a cruise ticket

contract will be enforced if the passenger had “reasonably adequate notice that the

limit existed and formed part of the passenger contract.” Nash, 901 F.2d at 1566.

Plaintiffs contend that they did not have adequate notice of the time limitation in

the Contract because the typeface used for that provision was not bold, highlighted,


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or printed in a contrasting color. But we have previously held that cruise ticket

contracts printed in a similar size and typeface were sufficient “as a matter of

physical presentation” to provide reasonable notice to passengers where, as here,

the relevant provision was clearly labeled and an additional notice in a prominent

location (such as the cover of the ticket booklet) directed ticket-holders to the

contract section of the booklet. See Myhra, 695 F.3d at 1245–46; Nash, 901 F.2d

at 1567–68.

      Moreover, plaintiffs clearly had actual notice of the one-year time limit for

bringing suit before the November 25, 2016 deadline passed, given their attorney’s

May 2016 correspondence specifically referring to the Contract, acknowledging

the limitation provision, and notifying Royal Caribbean that plaintiffs intended to

file suit—in the contractually-required forum—before the one-year time limit

expired. The district court did not err in determining that the one-year contractual

limitation in plaintiffs’ ticket contract was valid and enforceable.

                                          C.

      Equitable tolling “is an extraordinary remedy which should be extended only

sparingly.” Chang, 839 F.3d at 996 (citation and punctuation omitted). The

plaintiff bears the burden of demonstrating that equitable tolling should apply. Id.

Tolling may be applied where a claimant has been misled into inaction by the

opposing party, or where he “timely files a technically defective pleading and in all


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other respects acts with ‘the proper diligence.’” Justice v. United States, 6 F.3d

1474, 1479 (11th Cir. 1993) (quoting Burnett v. New York Central R. Co., 380 U.S.

424, 430, 85 S. Ct. 1050, 1056 (1965)). But tolling is not warranted where a

plaintiff knows or reasonably should know that the limitations period is running

and still fails to file on time. Id. at 1479–80. Courts generally will not apply

equitable tolling when the late filing is caused by “garden-variety” neglect. Id. at

1480.

        Plaintiffs’ counsel’s May 31, 2016 correspondence showed that plaintiffs

knew that the limitations period was running, and that it would expire on or before

November 25, 2016. Plaintiffs imply that they were misled into missing the one-

year deadline by Royal Caribbean’s November 9, 2016 letter inviting them to send

a settlement demand (which plaintiffs’ counsel reportedly did on December 6,

2016). But the same correspondence in which Royal Caribbean offered to reopen

settlement discussions also specifically notified plaintiffs’ counsel that Royal

Caribbean had not waived any of its rights or limitations of liability, including

those contained in the ticket contract. And while plaintiffs claim—without record

support—that they “actively engaged in settlement negotiations” with Royal

Caribbean “until early 2017,” they also state that Royal Caribbean “made no

genuine efforts to engage in settlement negotiations” with them, and there is no

evidence that Royal Caribbean communicated with plaintiffs’ counsel about


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settlement after November 9, 2016, or otherwise encouraged plaintiffs to delay

filing their lawsuit until July 2017. Nor is there any indication that plaintiffs ever

asked Royal Caribbean to consent to an extension of the contractual limitation

period while the parties engaged in settlement negotiations. Under the

circumstances, equitable tolling was not warranted.

      Because the district court correctly determined that plaintiffs’ lawsuit was

barred by the one-year contractual limitation period provided in their cruise tickets,

the court did not err in entering summary judgment for Royal Caribbean based on

that time bar.

      The judgment is AFFIRMED.




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