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Fernandez v. United States

United States District Court, S.D. Florida

December 12, 2017

ODALVIS FERNANDEZ and JULIO RODRIGUEZ, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS CAUSE comes before the Court on Defendant United States of America's Motion to Dismiss Plaintiffs' Amended Complaint (the “Motion”) [ECF No. 16]. The Court has reviewed the Motion, the record, and the applicable law and is otherwise fully advised. For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         Plaintiffs Odalvis Fernandez (“Fernandez”) and Julio Rodriguez (“Rodriguez”) (collectively “Plaintiffs”) bring this negligence action against Defendant United States of America (“Defendant”) pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2674 (“FTCA”), for injuries sustained by Fernandez while swimming in Biscayne National Park. Plaintiffs allege that on July 12, 2015, they set out on their boat for a day of leisure in Biscayne National Park. After meeting some friends, Plaintiffs anchored their boat just outside the designated swimming area at Boca Chita Key, an island within Biscayne National Park. Plaintiffs allege that the designated swimming area was demarcated by white buoys with a red “X” to signify that vessels were prohibited from entering the swimming area. While wading from Plaintiffs' boat through the designated swimming area towards the Boca Chita Key beach, Fernandez's foot was pierced by a piece of rebar protruding from a submerged piece of concrete.

         Defendant moves to dismiss Plaintiffs' Amended Complaint [ECF No. 15] under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on its immunity from suit under the FTCA. Defendant argues that it is entitled to immunity pursuant to Florida's recreational use statute, Fla. Stat. § 375.251, because Fernandez's injuries occurred in a distinct area provided to the public for outdoor recreational purposes where no commercial activity takes place. Conversely, Plaintiffs argue that Defendant is not entitled to the immunity afforded by the statute because Defendant derives revenue from fees charged to patrons in other distinct areas of Biscayne National Park.

         II. LEGAL STANDARD

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “A district court must have jurisdiction under at least one of the three types of subject-matter jurisdiction: (1) jurisdiction pursuant to a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Butler v. Morgan, 562 F. App'x 832, 834 (11th Cir. 2014) (citation omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377 (citations omitted).

         “[A] motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) can be based upon either a facial or factual challenge to the complaint.” McElmurray v. Consol. Gov't of Augustana-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). A facial challenge provides Plaintiff with similar safeguards to those of a Rule 12(b)(6) motion, as “the court must consider the allegations in the plaintiff's complaint as true.” Id. In considering a facial attack on the complaint, the court must look to whether the plaintiff has “sufficiently alleged a basis of subject matter jurisdiction.” Id. The Court treats the Motion as a facial attack on the Complaint as the Defendant does not explicitly assert a factual challenge and does not challenge the Complaint's allegations with extrinsic evidence.

         III. DISCUSSION

         The FTCA provides that the United States may be held liable for money damages for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment” in the same manner and to the same extent as a private person under like circumstances. 28 U.S.C. § 1346(b)(1). However, Florida's recreational use statute provides a shield against liability for landowners who make their property available to the public for outdoor recreational purposes against persons who may be injured on their property. § 375.251(1), Fla. Stat. The pertinent portions of the recreational use statute state:

(1) The purpose of this section is to encourage persons to make land, water areas, and park areas available to the public for outdoor recreational purposes by limiting their liability to persons using these areas and to third persons who may be damaged by the acts or omissions of persons using these areas.
(2)(a) An owner or lessee who provides the public with an area for outdoor recreational purposes owes no duty of care to keep that area safe for entry or use by others, or to give warning to persons entering or going on that area of any hazardous conditions, structures, or activities on the area. An owner or lessee who provides the public with an area for outdoor recreational purposes:
1. Is not presumed to extend any assurance that the area is safe ...

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