JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on review of defendant's Motion to Dismiss (Doc. #54) filed on December 29, 2016. Plaintiff filed an Opposition (Doc. #56) on January 4, 2017.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
As a preliminary matter, plaintiff asserts subject-matter jurisdiction based on the presence of complete diversity among the parties, as well as based on the presence of claims asserted pursuant to federal statutes. (Doc. #53, ¶ 40.) Before considering whether plaintiff has sufficiently stated his claims, the Court must consider whether it lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(h)(3). Defendants also raised the issue of this Court's subject-matter jurisdiction, but argue that the undersigned should follow the "first-filed rule" and dismiss this case based on the decision by the Honorable Sheri Polster Chappell dismissing a related case without prejudice on November 18, 2016.
Diversity jurisdiction requires complete diversity of citizenship, and that the matter in controversy exceed the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a);
Plaintiff is alleged to be domiciled in the State of Florida. (Doc. #53, ¶ 42.) Extreme Seal Experience LLC is not a named party in the caption but is listed as a defendant and is purported to be a limited liability company registered in the State of Virginia with a principal place of business listed in Maryland with the only "owner" being Don Shipley.
The First Cause of Action alleges a violation of plaintiff's copyright ownership in a registered photograph by defendants who published copies of the registered photograph, and profited from the infringement. Plaintiff alleges that he owns or has the exclusive right to the photograph identified as 2A, which is registered with the United States Copyright Office. (Doc. #53, ¶¶ 4, 6, 69.) Plaintiff alleges that his intellectual property was stolen and published on YouTube, LLC to garner viewers and pay per view monthly subscriptions. Plaintiff seeks to disgorge the profits from the use of his photograph. (
District Courts have original jurisdiction over civil actions arising under federal statutes regulating copyrights and trademarks. 28 U.S.C. § 1338(a). As previously stated, plaintiff must show that he owns a copyrighted work, and that defendants copied protected elements of the copyrighted work.
Defendants argue that the First Amended Complaint fails to comport with Federal Rules of Civil Procedure 8 and 10, but defendants decline to present arguments as to Counts II through VII arguing that Judge Chappell has already determined that these counts fail to state a claim.
The Court has a sua sponte obligation to identify and dismiss a shotgun pleading.
The Second Cause of Action alleges a violation of 18 U.S.C. § 2333; the Third Cause of Action alleges a civil RICO violation; the Fourth Cause of Action alleges negligence per se; the Fifth Cause of Action alleges intentional infliction of emotional distress; and the Sixth and Seventh Causes of Action allege assault and battery, respectively. Each of these counts incorporates paragraphs 1 through 107 in their entirety rendering the factual basis meaningless, and failing to give defendants adequate notice of the claims against them. (Doc. #53, ¶¶ 113, 150, 167, 173. 208, 213.) Plaintiff also alleges facts in various and lengthy footnotes that will not be considered as they are not properly stated in the numbered paragraphs pursuant to Fed. R. Civ. P. 10(b). Therefore, the First Amended Complaint is due to be dismissed without prejudice as a shotgun pleading.
The Second Cause of Action generally alleges that defendants have funded, planned, and carried out terrorist attacks against military civilians by driving them to suicide or actually harming them because of an opposition to United
It is alleged that defendants targeted an aircraft owned by plaintiff and others through a trust located at Page Field airport. It is further alleged that defendants trespassed gates, locks, and surveillance cameras to introduce a liquid into the fuel system and interior of the aircraft to cause it to crash, and/or by cutting the fuel line. (
Plaintiff alleges that defendants have a policy of using terror attacks to intimidate civilian populations, and to change the laws of the United States, United Kingdom, Canada and France, but plaintiff's damages stem from the sabotaging of his aircraft. (
Under Title 18, United States Code, Section 2333(a), known as the Anti-Terrorism Act (ATA),
18 U.S.C. § 2333(a) (emphasis added).
18 U.S.C. § 2331(1). None of the alleged acts against plaintiff or his aircraft transcended national boundaries, and are not international acts of terrorism as defined by the ATA. The actions pertaining to plaintiff's family and the Scotland Yard investigations do not amount to coercion of a civilian population, nor did they serve to influence the policy of a government. Having been previously dismissed without prejudice for failure to state a claim,
The Third Cause of Action alleges a violation of 18 U.S.C. § 1962(a), otherwise known as the Racketeer Influenced and Corrupt Organizations Act (RICO). Plaintiff alleges that defendants acting as an enterprise committed two or more predicate acts, as listed in 18 U.S.C. § 1961(1), that make up a pattern of racketeering effecting interstate commerce. Plaintiff includes a myriad of racketeering activity including threats of murder and arson, extortion, identification, mail, wire, and financial institution fraud, obstruction of justice, criminal infringement of copyrighted material, and even the use of chemical weapons. (Doc. #53, ¶¶ 152-153.) Plaintiff alleges that defendants profited from the enterprise by gaining membership, and that his injuries flow from the use or investment of that income.
Under RICO, it is unlawful for a person "who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt" to use or invest any part of the income acquired to establish or operate an enterprise engaged in activities affecting interstate or foreign commerce. 18 U.S.C. § 1962(a). A person may institute a civil action if "injured in his business or property" to recover threefold damages, costs, and reasonable attorney's fees. 18 U.S.C. § 1964(c). Injuries must be for economic losses that flow from the commission of the predicate acts,
Although defendants are alleged to have profited greatly from their enterprise, plaintiff has not alleged that the realized profits caused an economic injury to him flowing from the specified predicate acts. Plaintiff pled a non-pecuniary reputational injury and a dilution of the value of his copyright, Doc. #53, ¶ 13, but did not allege that they were the direct result of defendants' racketeering activities. The only viable economic loss pled is as a result of sabotaging of the aircraft, Doc. #53, ¶ 148, but the aircraft is not owned by plaintiff and the predicate act that led to the sabotage is unclear. The Court finds that plaintiff has failed to state a claim under RICO.
Having been previously dismissed without prejudice for failure to state a claim,
In the Fourth Cause of Action, plaintiff alleges negligence per se under Florida state law for engaging in private investigations without a license. (Doc. #53, ¶¶ 162-171.) The failure to obtain a license pursuant to Fla. Stat. § 493.6201 to operate a private investigation agency is not a violation of a strict liability statute or a violation of a statute that establishes a duty to take precautions to protect a particular class of persons or type of injury.
In the Fifth Cause of Action, plaintiff alleges intentional infliction of emotional distress. In support, plaintiff alleges emotional distress based the property damage done to the aircraft that could have resulted in his death, defamation, an accusation by defendants of him of being a stalker causing his arrest and incarceration, identity theft, surveillance of his home, invasion of privacy and invasion of his trash, threatening to kill and tormenting plaintiff to commit suicide, harassing plaintiff with calls at all hours, and publication of his medical records. Plaintiff alleges that he has and continues to undergo treatment for his emotional distress and the physical symptoms, he was on suicide watch because defendants broadcast that plaintiff beat his wife, molested children, and stole from the government, and that the average member of the community would find the behavior outrageous. (Doc. #53, ¶¶ 178-181, 183-185, 187, 189, 193, 196-200, 203, 207.)
To state a claim for intentional infliction of emotional distress, plaintiff must show: "(1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) the conduct caused the emotional distress; and (4) the distress was severe."
Generally, threats, insults, or indignities are insufficient to state a claim, unless for example plaintiff is threatened with murder and rape of his family.
In the last two Causes of Action, plaintiff claims assault and battery by defendants without indicating which defendant acted, or how each committed an assault and/or battery. Setting aside this problem, plaintiff alleges as to the Sixth Cause of Action (assault) that defendants ambushed and barricaded plaintiff inside his home and assaulted him "by placing him in fear of battery." Plaintiff alleges that he was in fear that violence was imminent, and defendants had the apparent ability to carry out the threat. (Doc. #53, ¶¶ 209-210, 212.) As to the Seventh Cause of Action (battery), plaintiff alleges that he was piloting an aircraft and was about to take off but defendants had introduced clogging materials into the fuel system and severed a control cable causing him to decelerate and use emergency maneuvers. Plaintiff alleges that defendants created the dangerous conditions causing injury to his wrist. (
An assault is an intentional and affirmative act to threaten use of force, or to exert actual force, toward another "to create a reasonable fear of imminent peril."
At this stage of the proceedings, the Court cannot find that plaintiff could not state a claim based on the relevant factual allegations peppered throughout the First Amended Complaint. As a result, the Court will dismiss these claims without prejudice to allow plaintiff to amend. In doing so, plaintiff
Accordingly, it is now