Opinion
Case Number: 08-21485-CIV-MORENO.
August 20, 2008
ORDER GRANTING MOTION TO DISMISS
THIS CAUSE came before the Court upon the Defendants' Motion to Dismiss Plaintiff's Complaint and to Strike Plaintiff's Demand for Jury Trial (D.E. No. 8), filed on June 23, 2008 .
THE COURT has considered the motion, response, reply to the response and the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ADJUDGED that the motion is GRANTED. The Complaint is DISMISSED without prejudice. Plaintiff may file an Amended Complaint by September 5, 2008 .
The Plaintiff's claim that the decedent died "either as a result of the injuries she sustained aboard the Defendants' floating dock, or, in the alternative, from causes unrelated to the accident" is too speculative to maintain a cause of action for wrongful death. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) ("[F]actual allegations must be enough to raise a right to relief above the speculative level."). Moreover, the Complaint does not satisfy the pleading requirements set forth in Federal Rule of Civil Procedure 11.
In addition, there is no diversity of citizenship that would provide diversity jurisdiction in this case. An admiralty action does not provide an independent basis for a jury trial in this district unless the plaintiff sues under a statute that expressly provides for it. See Green v. Ross, 338 F. Supp. 365, 367 (S.D. Fla. 1972); Neenan v. Carnival Corp., Case No. 99-2658-CIV-LENARD, 2001 WL 91542 (S.D. Fla. Jan. 29, 2001). In his Response to the Motion to Dismiss, the Plaintiff contends that there could be diversity jurisdiction based on the fact that the Defendants might not be Florida residents. Apparently, the Plaintiff forgets that he affirmatively pled that the Defendants were citizens of Florida in his Complaint. The Court rules that the Defendants are citizens of Florida for purposes of this lawsuit based on the Plaintiff's own representations to the Court, which are uncontroverted by the Defendants. Therefore the Plaintiff's request for a jury trial is STRICKEN without leave to refile.
DONE AND ORDERED in Chambers at Miami, Florida.