The opinion of the court was delivered by: John F. Keenan, United States District Judge
MEMORANDUM OPINION & ORDER
This is an action pursuant to the Limitation of Liability Act, 46 U.S.C. §§ 30501 et seq. Petitioner Jules Abadi ("Petitioner", or "Abadi") seeks an order exonerating him from or limiting his liability for a pleasure-boating accident resulting in injury to respondent Susan Garvey ("Respondent", or "Garvey"), a passenger on the boat. Garvey moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, and, alternatively, for summary judgment. For the reasons discussed below, the motions are denied.
The following facts are alleged in Petitioner's verified complaint. Abadi is the owner of the vessel M/V Playpen, a 28-foot pleasure boat. (Compl. ¶ 1.) On or about October 3, 2006, his boat "was traveling on the navigable waters of Miami-Dade County, State of Florida" when Susan Garvey, a passenger, allegedly sustained an injury. (Id. ¶ 2.) Petitioner Abadi claims he was not at fault for the alleged injury and that the injury occurred "without [his] knowledge or privity." (Id. ¶ 2.) Garvey filed a personal injury suit against Abadi in Supreme Court, New York County on May 18, 2007. (Id. ¶ 5.) Abadi seeks an order exonerating him from liability for Garvey's injury or limiting his liability to the value of the boat on the date of the accident, which he stipulates to be $95,000. (Id. ¶ 7-12.)
The following additional details are offered by Garvey's affidavit in support of summary judgment. On October 1, 2006, Garvey was an invited passenger for a pleasure ride on the M/V Playpen, which was operated at all times by its owner, Abadi. (Garvey Aff. ¶ 2.) Abadi and Garvey were the only two people on board. (Id.) After the voyage, Abadi was returning the boat to the Miami Beach Marina in the afternoon when he left the steering wheel, allowing the boat to collide with the marina's concrete seawall. (Id. ¶ 3-4.) Garvey's left hand was pinned in the collision between the boat and the seawall, amputating part of her thumb and causing the amputated portion to become "embedded into the concrete wall." (Id. ¶ 5.) The thumb was retrieved from the marina and brought to the hospital but could not be reattached to Garvey's hand. (Id. ¶ 6.)
On May 18, 2007, Garvey sued Abadi for the personal injury described above in New York State Supreme Court, New York County. On July 6, 2007, Abadi removed the case to the Southern District of New York, and the case was assigned to another judge of this Court. Garvey moved to remand the case. In a letter dated October 17, 2007, Abadi indicated that he would not oppose the motion to remand. The case was ordered remanded on October 18, 2007.
On October, 26, 2007, Abadi filed a verified complaint commencing this action for exoneration from or limitation of liability. Abadi also put up $95,000, the value of the M/V Playpen, as an Ad Interim security for the benefit of any and all claimants.
On October 30, 2007, a judge of this Court sitting in Part I signed an order staying all suits arising from the accident until the determination of this action. The order also approved the amount of security and directed the Clerk of the Court to issue notice that any party who wished to file a claim or contest the petition for exoneration from or limitation of liability must do so by December 17, 2007.
On November 29, 2007, Garvey filed an answer to the verified complaint in which she asserted that Abadi was negligent in operating the boat and not entitled to exoneration from or limitation of liability. (Answer ¶¶ 1-2.) She also raised the affirmative defenses, among others, that the Court lacks subject matter jurisdiction because Garvey's state action previously had been remanded without opposition, and that the verified complaint fails to state a claim. (Id. at ¶ 28.) She prays for a judgment dismissing the complaint or, in the alternative, an award of $15 million for her injuries in addition to punitive damages.
On April 14, 2008, Garvey filed the instant motion to dismiss the verified complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim pursuant to Rule 12(b)(6). In the alternative, Garvey seeks judgment that Abadi is not entitled to ...