Opinion
CASE NO: 8:11-cv-631-T-26AEP.
June 6, 2011
ORDER
Upon due consideration of the well-pleaded allegations of Plaintiffs' complaint, which this Court must accept as true at this juncture of the proceedings, it is ordered and adjudged that Defendant's Motion to Dismiss (Dkt. 6) is denied. In the Court's view, Plaintiffs' allegations are more than sufficient to raise a right to relief above the speculative level and state a plausible claim for relief for medical malpractice under the new pleading standards promulgated in Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although the Court recognizes the order issued in Valdivia v. United States, 2008 WL 2756497 (M.D. Fla. 2008), the Court also recognizes that the order was issued after a full trial on the merits and not within the context of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
In light of this resolution of the motion, the Court needs no response from Plaintiffs.
The Court notes that Defendant's counsel has incorrectly referred the Court to the pleading standards of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which have been abrogated by Twombly and Iqbal.
Moreover, Valdivia is not binding precedent which this Court must follow. See United States v. Cerceda, 172 F.3d 806, 812 n. 6 (11th Cir. 1999) (noting that "[t]he opinion of a district court carries no precedential weight, even within the same district.") (citation omitted). The fact that the Eleventh Circuit affirmedValdivia in an unpublished opinion, see Valdivia v. United States, 326 Fed.Appx. 540 (11th Cir. 2009), does not alter this result. See 11th Cir. R. 36-2 (providing in pertinent part that "[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority."). Defendant shall file its answer and defenses to Plaintiffs' complaint within ten (10) days of this order.
DONE AND ORDERED at Tampa, Florida.