Opinion
Case No. 6:11-cv-644-Orl-31GJK.
September 1, 2011
ORDER
This matter comes before the Court without a hearing on the Motion to Dismiss the Second Amended Complaint (Doc. 30) filed by the Defendants and the Response (Doc. 31) filed by the Plaintiff. This federal question case arises out of the drowning of Verline Jules in a pool owned and operated by the Defendants. The Second Amended Complaint sets forth essentially identical negligence claims against each Defendant. Contained within those negligence claims are numerous allegations regarding the condition of the pool operated at the time of Jules's death, such as contentions that the pool contained mustard algae that obscured visibility, and that the pool gate was not latching properly. (Doc. 29 at 4, 7). Those negligence claims also contain allegations that the pool was not compliant with the Virginia Graeme Baker Act, 15 U.S.C. § 8001 et seq., and that the Defendants' failure to bring the pool into compliance violated that act and the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (Doc. 29 at 5, 8). The Second Amended Complaint does not contain separate claims asserting violations of either of these federal laws.
The Defendants assert that the Second Amended Complaint does not assert a federal question, in that simply referring to federal laws within the context of a state law claim is not enough to transform the claim into one arising under federal law. The Plaintiff argues that she has asserted that the pool was not in compliance with 15 U.S.C. § 8003(c), and that violations of 15 U.S.C. § 8003(c)(1) are considered to be violations of 15 U.S.C. § 2068(a)(1) of the Consumer Product Safety Act. However, while the Consumer Product Safety Act does provide a private right of action for such violations, the Plaintiff has not asserted a claim under that act. Rather, Plaintiff has asserted state law claims that make reference to federal law.
Under certain circumstances, the presence of a significant federal issue within a state law claim can transform it into one "arising under" federal law. See, e.g., Grable Sons Metal Products, Inc. v. Darue Engineering Manufacturing, 545 U.S. 308, 312 (2005) (finding federal question jurisdiction over state law claims that "necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities."). The Plaintiff does not argue that the state law claims asserted here qualify under this standard.
In consideration of the foregoing, it is hereby
ORDERED that the Motion to Dismiss the Second Amended Complaint (Doc. 30) is GRANTED, and the Second Amended Complaint (Doc. 29) is DISMISSED for lack of subject matter jurisdiction.
DONE and ORDERED in Chambers, Orlando, Florida.