            Case: 19-14993     Date Filed: 08/24/2020   Page: 1 of 9



                                                            [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-14993
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:19-cv-23885-BB


ERIKA ROBERTS,

                                                             Plaintiff - Appellant,

                                    versus

CARNIVAL CORPORATION,
d.b.a. Carnival Cruise Line,

                                                            Defendant - Appellee.

                       ________________________

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

                               (August 24, 2020)

Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:
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       On its own motion, the Court vacates its prior opinion in this case, filed July

28, 2020, and substitutes the following opinion in its place.1

       Erika Roberts appeals the dismissal of her lawsuit against Carnival

Corporation (“Carnival”) to recover damages for injuries she suffered after slipping

and falling on a Carnival cruise ship. The district court granted Carnival’s motion

to dismiss, concluding that a one-year contractual limitations period for personal

injury claims that was contained in Roberts’s ticket contract barred the lawsuit.

Seeking reversal, Roberts argues that the court erred by going outside the four

corners of the complaint to grant Carnival’s motion and by concluding that the time

limit in the ticket contract was enforceable.

                                             I.

       Ordinarily, the district court must convert a motion to dismiss into a motion

for summary judgment if it considers materials outside the complaint and its

attachments. Day v. Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 2005); Horsley v.

Feldt, 304 F.3d 1125, 1134–35 (11th Cir. 2002). So the court is ordinarily barred

from considering facts not alleged in the complaint or documents attached to a

motion to dismiss. See id. But an exception to this rule applies if a document

attached to the complaint is “referred to in the complaint, central to the plaintiff’s


       1
         Appellee Carnival Corporation’s Motion for Reconsideration is GRANTED to the extent
that the Court will consider the arguments raised therein. The motion is DENIED to the extent
Appellee seeks to file a response brief out-of-time.
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claim, and of undisputed authenticity.” Hi-Tech Pharm., Inc. v. HBS Int’l Corp.,

910 F.3d 1186, 1189 (11th Cir. 2018); see Day, 400 F.3d at 1276.

       In granting Carnival’s motion to dismiss, the district court applied this

exception to rely on two documents that were attached to that motion: (a) the ticket

contract containing the one-year limitations period for claims of personal injury; and

(b) an “acceptance report” indicating that Roberts had received a copy of the ticket

contract before boarding the cruise ship. The court noted that the authenticity of the

ticket contract was undisputed. And “[b]ecause Plaintiff’s claims are rooted in

personal injury,” the court explained, “the Ticket Contract is central to Plaintiff’s

claims based on its language.” The court did not further explain what it meant by

this or offer any explanation for considering the acceptance report.

       Roberts argues that the district court improperly considered matters outside

the complaint without converting the motion to dismiss into a motion for summary

judgment. We agree. The ticket contract is not central to her claims because it is

not a necessary or essential part of Roberts’s effort to show that she was injured due

to Carnival’s negligence.2 See Day, 400 F.3d at 1276 (concluding that a contract

was central to the plaintiffs’ claim because it was a “necessary part of their effort to

make out a claim that the relationship between U-Haul and its independent dealers


       2
         Although it appears Roberts initially may have intended to attach a “Ticket” as an exhibit
to the complaint, as Carnival noted below, we cannot rely on that fact because she ultimately did
not attach the ticket contract to her complaint.
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is not a genuine agency, but a sham agency,” which was at “the very heart” of the

plaintiffs’ claim). As for the acceptance report, it was neither relevant to her

negligence claims nor referenced in the complaint. See Hi-Tech Pharm., 910 F.3d

at 1189.

       Carnival’s arguments in response are unpersuasive. First, Carnival offers no

legal support or reasoning for its assertion that a contractual limitations period is a

“condition precedent” to suit.3 Nor does it make much sense to describe a limitations

period as a condition that must occur before a suit can be maintained. And we fail

to see why the fact that the limitations period being is contractual as opposed to

statutory makes the ticket contract any more central to Roberts’s claims. See

Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984)

(“There is no essential difference between contractual and statutory limitations.”).

       Second, Carnival’s claim that it had no duty to Roberts “but-for her passage,

which would not have occurred but-for the Ticket Contract,” while technically

correct, does not convince us that the terms of the contract itself are central to her

claim. The only relevant provisions in the contract that Carnival has identified are

the forum-selection clause and the limitations provision, which do not concern the


       3
          The cases Carnival cites for this assertion do not describe a contractual limitations period
as a condition precedent. In fact, the words “condition” or “precedent” do not appear in Farris v.
Celebrity Cruises, Inc., 487 F. App’x 542 (11th Cir. 2012). And the district court’s discussion of
“conditions precedent” in Cigainero v. Carnival Corporation, 426 F. Supp. 3d 1299, 1306–07
(S.D. Fla. 2019), concerned a contractual provision that required the plaintiff to give pre-suit notice
to the cruise line, not one that established a limitations period for the filing of a lawsuit.
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merits of Roberts’s negligence claims against Carnival. And in our view, the mere

fact that the ticket contract may be relevant evidence—tending to show that Roberts

was a valid passenger to whom Carnival owed a duty of care—is not alone enough

to show that it was central to her claims. See Hi-Tech Pharm., 910 F.3d at 1189.

      Because it appears that the ticket contract and acceptance report have little to

do with the substance of Roberts’s claims against Carnival, they were not “central”

to her claims such that these documents could be considered through a motion to

dismiss. See Day, 400 F.3d at 1275–76. Accordingly, the district court erred by

considering matters outside the complaint without converting the motion to dismiss

into one for summary judgment.

                                         II.

      Alternatively, even assuming the district court properly considered the ticket

contract—but not the acceptance report, for which no valid reason has been

offered—at the motion-to-dismiss stage, dismissal for failure to state a claim on

contractual-limitations grounds was not appropriate because it is not “apparent from

the face of the complaint that the claim is time-barred.” United States ex rel. Hunt

v. Cochise Consultancy, Inc., 887 F.3d 1081, 1085 (11th Cir. 2018).

      We review de novo an order granting a motion to dismiss on limitations

grounds, accepting the allegations in the complaint as true and construing all

reasonable inferences in the plaintiff’s favor. La Grasta v. First Union Sec., Inc.,


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358 F.3d 840, 845 (11th Cir. 2004). “A statute of limitations bar is an affirmative

defense, and plaintiffs are not required to negate an affirmative defense in their

complaint.” Id. (quotation marks, ellipsis, and alterations omitted). As a result, “[a]

dismissal for failure to state a claim on statute of limitations grounds is appropriate

only if it is apparent from the face of the complaint that the claim is time-barred.”

Hunt, 887 F.3d at 1085. When valid, a contractual limitations period works the same

as a statutory limitations period. Chang v. Carnival Corp., 839 F.3d 993, 996 n.3

(11th Cir. 2016).

      Maritime tort claims like Roberts’s are subject to a default limitations period

of three years. 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 (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).    And 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.

      For a contractual limitations period to be enforceable, it must have been

“reasonably communicated to the passenger.” Caron v. NCL (Bahamas), Ltd., 910

F.3d 1359, 1367 (11th Cir. 2018). We apply a two-factor test for reasonable

communication, which evaluates (1) “the physical characteristics of the clause” and




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(2) “the passenger’s opportunity to become meaningfully informed of the contract

terms.” Id.

      The first factor is limited to a review of the contract itself. See, e.g., Estate of

Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1245–46 (11th Cir. 2012)

(reviewing the physical characteristics of the contract); Krenkel v. Kerzner Int’l

Hotels Ltd., 579 F.3d 1279, 1282 (11th Cir. 2009) (same). Courts consider the size,

placement, font, and readability of the limitations-period clause, among other

objective characteristics. See id.

      But the second factor takes into account facts beyond the contract. This factor

“focuses on the subjective circumstances attending a particular plaintiff’s

opportunity to review the ticket terms before embarkation.” Ward v. Cross Sound

Ferry, 273 F.3d 520, 525 (2d Cir. 2001) (quotation marks omitted); Shankles v.

Costa Armatori, S.P.A., 722 F.2d 861, 866 (1st Cir. 1983) (the second factor includes

analysis of “any extrinsic factors indicating the passenger’s ability to become

meaningfully informed of the contractual terms at stake”). In Myhra, for example,

we relied on invoices that the cruise line sent to the plaintiffs which directed them

to the terms and conditions of the contract. Myhra, 695 F.3d at 1246.

      Here, the district court erred by resolving the limitations issue through a

motion to dismiss. While Roberts did not dispute the authenticity of the ticket

contract, she contended that the one-year contractual limitations period was not


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enforceable because it had not been reasonably communicated to her. That issue

cannot be resolved on the face of the ticket contract alone, because the reasonable

communicativeness test depends not only on the contract itself but also on extrinsic

factors relating to “the subjective circumstances attending a particular plaintiff’s

opportunity to review the ticket terms before embarkation.” Ward, 273 F.3d at 525;

Shankles, 722 F.2d at 866. Roberts was not afforded the opportunity to submit

evidence relevant to the second factor of that test. Nor was she required to anticipate

and rebut the limitations defense in her complaint, which was silent as to these

matters. See La Grasta, 358 F.3d at 845.

      Carnival responds that matters outside of the ticket contract are not relevant

because the reasonable communicativeness test does not depend on whether Roberts

in fact read the limitations provision and was aware of it. We agree that whether

Roberts read “the terms and conditions is not relevant to the reasonable

communicativeness inquiry.” Myhra, 695 F.3d at 1246 n.42. But Carnival’s

argument that we can rely on the contract alone effectively collapses the test into a

single factor. And our precedent clearly requires an evaluation of “the passenger’s

opportunity to become meaningfully informed of the contract terms,” Caron, 910

F.3d at 1367, which necessarily means that we consider facts outside of the contract

itself. As noted above, the complaint is silent as to these extrinsic matters. Because

the limitations issue cannot be resolved from the face of the complaint and the ticket


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contract, the district court erred in granting Carnival’s motion to dismiss Roberts’s

claims as time barred. See Hunt, 887 F.3d at 1085.

      For these reasons, we vacate the order granting Carnival’s motion to dismiss

and remand for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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