United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
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.
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
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.
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).
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.
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
(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