In the Matter of Charles C. Walker

Filing 49

ORDER adopting 39 Report and Recommendation of the Magistrate Judge. The Report and Recommendation of the Magistrate Judge is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appellate review. Petitioner Charles C. Walker's Motion 23 is GRANTED in part and DENIED in part as follows: a. Mead's negligence claim is DISMISSED without prejudice. b.Mead's unseaworthiness claim is DISMISSED with prejudice. c. Mead's Sixth Affirmative Defense is STRICKEN. d.Mead's request in his Answer for attorney's fees and costs is STRICKEN. e. The Motion is DENIED in all other respects. The Court notes that Mead has already filed an Amended Claim. See Doc. 48. Therefore, there is no reason to give Mead leave to file an amended claim. The Court accepts Mead's Amended Claim as the claim filed in response to the Report and Recommendation. Signed by Judge Charlene Edwards Honeywell on 6/30/2014. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHARLES C. WALKER,
Petitioner,
v.

Case No: 6:13-cv-1894-Orl-36GJK

LONNY A. MEAD and ALL PERSONS
AND ENTITIES THAT DID NOT FILE
A CLAIM OR ANSWER,
Respondents.
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate Judge
Gregory J. Kelly, filed on June 2, 2014 (Doc. 39). In the Report and Recommendation, Magistrate
Judge Kelly recommends that the Court grant in part and deny in part Petitioner Charles C.
Walker’s (“Walker”) Motion to Dismiss Claim of Respondent Lonny A. Mead (“Mead”) or in the
Alternative Motion for a More Definite Statement/Motion to Strike Jury Trial Demand/Motion to
Strike Certain Affirmative Defenses/Motion to Strike Attorney’s Fee Claim (“Motion”) (Doc. 23).
Doc. 39 at 12. No party has objected to the Report and Recommendation and the time to do so
has expired.
The Court is in agreement with the Magistrate Judge that Mead’s negligence claim should
be dismissed, with leave to amend, for failure to state a claim upon which relief can be granted.
See id. at 3–6. The Court also agrees that Mead’s unseaworthiness claim should be dismissed,
with prejudice, for failure to state a claim. See id. at 6–7; Kornberg v. Carnival Cruise Lines, Inc.,
741 F.2d 1332, 1335 (11th Cir. 1984) (explaining that the doctrine of seaworthiness does not apply

to passengers).1 Next, the Court agrees that Mead’s Sixth Affirmative Defense should be stricken,
and that his remaining Affirmative Defenses should stand. See Doc. 39 at 8–9. The Court also
agrees that Walker has failed to establish that Mead’s request for a jury trial should be stricken at
this time. See id. at 9–11. Finally, the Court agrees that Mead’s request for attorney’s fees and
costs should be stricken. See id. at 11. Therefore, after careful consideration of the Report and
Recommendation of the Magistrate Judge, in conjunction with an independent examination of the
court file, the Court is of the opinion that the Magistrate Judge’s Report and Recommendation
should be adopted, confirmed, and approved in all respects.
Accordingly, it is hereby ORDERED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 39) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review.

2.

Petitioner Charles C. Walker’s Motion (Doc. 23) is GRANTED in part and
DENIED in part as follows:
a.
b.

Mead’s unseaworthiness claim is DISMISSED with prejudice.

c.

Mead’s Sixth Affirmative Defense is STRICKEN.

d.

Mead’s request in his Answer for attorney’s fees and costs is STRICKEN.

e.
3.

Mead’s negligence claim is DISMISSED without prejudice.

The Motion is DENIED in all other respects.

The Court notes that Mead has already filed an Amended Claim. See Doc. 48.
Therefore, there is no reason to give Mead leave to file an amended claim. The

1

Because the Court is dismissing Mead’s claims, the Court agrees with the Magistrate Judge that
Walker’s request in the alternative for a more definite statement should be denied as moot. See
Doc. 39 at 7–8.

2

Court accepts Mead’s Amended Claim as the claim filed in response to the Report
and Recommendation.
DONE and ORDERED in Orlando, Florida on June 30, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Gregory J. Kelly

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