[DO NOT PUBLISH]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.
3