                                                                 [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                         FILED
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         DEC 07, 2007
                                                                      THOMAS K. KAHN
                                       No. 07-11617
                                                                           CLERK


                          D. C. Docket No. 06-60961 CV-PAS

WALTER WEISENBERG,

                                                          Plaintiff-Appellant,

                                           versus

COSTA CROCIERE S.P.A.,

                                                          Defendant-Appellee.



                     Appeal from the United States District Court
                         for the Southern District of Florida


                                   (December 7, 2007)

Before DUBINA and KRAVITCH, Circuit Judges, and GOLDBERG*, Judge.

PER CURIAM:
___________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
       Appellant Walter Weisenberg (“Weisenberg”) appeals the district court’s

order granting appellee’s, Costa Crociere, S.P.A. (“Costa”), motion to dismiss1

Weisenberg’s complaint as time-barred. Weisenberg sustained an injury on

December 17, 2003, while traveling aboard the passenger vessel Costa

Mediterania. The issues presented on appeal are: (1) whether the district court

erred in ruling that the statute of limitations on Weisenberg’s federal action was

not tolled during the pendency of Weisenberg’s action in Florida state court; and

(2) whether the district court erred in finding that Costa was not equitably

estopped from relying on the contractual period of limitations.

       We review de novo the district court’s grant of a motion to dismiss, or in the

alternative, motion for summary judgment. Doe v. Pryor, 344 F.3d 1282, 1284

(11th Cir. 2003). See Daewoo Motor America, Inc. v. General Motors Corp., 459

F.3d 1249, 1256 (11th Cir. 2006), cert. denied, 127 S. Ct. 2032 (2007).

       Even if we assume arguendo that the district court erred in relying on Levick

v. Steiner Transocean, Ltd., 377 F. Supp. 2d 1251 (S.D. Fla. 2005), in finding that

Weisenberg’s state court action did not toll the limitations period for his federal

action, it would make no difference in our disposition of this case.


       1
        The motion to dismiss was actually filed in the alternative as a motion for summary
judgment. The district court permitted the parties to submit matters in support of and in opposition
to the motion. After full briefing, the court entered its order granting the motion.

                                                 2
      The record clearly demonstrates that Weisenberg did not diligently pursue

his action such that equitable tolling should apply. The district court correctly

recognized that Weisenberg knew that under the terms of the contract with Costa,

he had to file his complaint in federal court. In fact, he did file in federal court,

but when he failed to serve his complaint within 120 days, the district court

dismissed the case. As the district court acknowledged, at that point, a diligent

plaintiff would have immediately sought relief or immediately refiled the case.

Because Weisenberg still had five weeks remaining on the one year statute of

limitations at the time of dismissal, either act would have protected his rights.

Instead, Weisenberg waited 364 days to seek relief from the order dismissing his

case, which does not constitute due diligence.

      Furthermore, we conclude from the record that the district court did not err

in finding that Costa was not equitably estopped from relying on the contractual

limitation period due to an alleged agreement between Weisenberg and Costa’s

claims administrator. There is simply nothing in the record to support this

contention. Accordingly, for the above-stated reasons, we affirm the district

court’s judgment of dismissal.

      AFFIRMED.




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