Opinion
Case No. 15-22164-Civ-COOKE/TORRES
07-27-2015
INTERNATIONAL SERVICE AVIATION CORP., and ALBERTO OSORIO, Plaintiffs, v. MIAMI TECH LINE MAINTENANCE SUPPORT, INC., and TOMAS ROMERO, Defendants.
ORDER OF DISMISSAL
Plaintiffs, International Service Aviation Corporation ("ISAC") and Alberto Osorio ("Osorio"), filed a handwritten Complaint alleging that Miami Tech Line Maintenance Support, Inc. and Tomas Romero illegally retained Plaintiffs' aircraft. Plaintiffs are proceeding pro se. Before me now is Defendants' Motion to Dismiss With Incorporated Memorandum of Law. (ECF No. 8). Plaintiffs have filed a response in opposition. (ECF No. 13). I have reviewed the Motion to Dismiss, the response, the record, and am otherwise advised in the premises. For the reasons that follow, Plaintiffs' Complaint is dismissed without prejudice.
I. BACKGROUND
Plaintiffs filed their Complaint on June 8, 2015. The Complaint states:
This letter is to certify that Mr. Tomas Romero Comp World Atlantic and Miami Tech Line retain illegally my aircraft Tail Hum. H125JW on Miami Tech hangar in Miami Int Airport. Mr. Romero paint my aircraft without my consent or authorization to perform any work on my aircraft H125JW. He also send a Aircraft Bill of Sale fraudulent. I have not sold my aircraft to World Atlantic or any company. Mr. Romero file, record on FAA Registration that I have not fill up. I file complain on Miami Dade Police Dept. Airport Aviation Mr. Romero and his bussines panner Amos Rodriguez retain, and make false statement. Mr. Romero and Mr. Amos want steal my aircraft. Aircraft book record and oxige mask.(ECF No. 1). The Complaint also attaches numerous "false documents." The Complaint is ambiguous as to whether it is filed in the name of ISAC or Osorio, or both. The Complaint is also ambiguous as to whether it is filed against Miami Tech Line Maintenance Support, Inc. or Tomas Romero, or both. The Complaint contains no allegations as to the basis for this Court's subject matter jurisdiction. It is unclear as to the cause(s) of action being asserted in the Complaint, although it is titled "Fraud Complaint."
II. LEGAL STANDARDS
Plaintiffs do not state the source of this Court's subject matter jurisdiction. A federal district court "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A federal district court shall also assert jurisdiction over civil actions where the matter in controversy exceeds $75,000, and is between citizens of different states or foreign countries. 28 U.S.C. § 1332.
"Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a district court must sua sponte inquire into subject matter jurisdiction, and may dismiss a case, whenever it may be lacking. Fed. R. Civ. P. 12(h)(3); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). "[O]nce a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue." Id.
Furthermore, 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). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that a plaintiff must articulate "enough facts to state a claim to relief that is plausible on its face."). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. A complaint's factual allegations must be enough to raise a right to relief above the speculative level. Id. Detailed factual allegations are not required, but a pleading "that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).
The purpose of a motion to dismiss is to test the facial sufficiency of a complaint. See Hermoza v. Aroma Restaurant, LLC, No. 11-23026-CIV, 2012 WL 273086, at *1 (S.D. Fla. Jan. 30, 2012). Therefore, a court's consideration when ruling on a motion to dismiss is limited to the complaint and any incorporated exhibits. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
Finally, a corporation may not appear pro se. See Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1386 (1985) ("[A] corporation is an artificial entity that can act only through agents, cannot appear pro se, and must be represented by counsel.").
III. ANALYSIS
Defendants move to dismiss the Complaint on numerous grounds. First, Defendants argue that the Complaint should be dismissed because a legal entity cannot represent itself pro se in a federal lawsuit. I agree that a corporation, such as Plaintiff ISAC, cannot appear pro se. See Palazzo, 764 F.2d at 1386. Rather than dismiss Plaintiffs' Complaint on this ground, however, I will provide ISAC an opportunity to retain counsel to appear on its behalf. Nevertheless, the Complaint suffers from other, more fundamental, deficiencies that do warrant dismissal.
Defendants' second basis for urging dismissal of the Complaint is that the Complaint is vague and ambiguous and otherwise fails to state a cause of action. I agree. While the title of the Complaint is "Fraud Complaint," it fails to state facts supporting the elements of a fraud claim. The elements of a claim for fraud under Florida law are: "(1) a false statement concerning a material fact; (2) knowledge by the person making the statement that the representation is false; (3) the intent by the person making the statement that the representation will induce another to act on it; and (4) reliance on the representation to the injury of the other party." Muhammad v. Citimortgage, Inc., 598 Fed. Appx. 636, 639 (11th Cir. 2015) (quoting Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984)). The Complaint fails to allege facts supporting each of the elements: a false statement concerning a material fact, knowledge by its maker of the statement's falsity, the maker's intent to induce plaintiff's reliance, and plaintiff's reliance.
Finally, while defendants do not raise this issue in their Motion to Dismiss, this Court, consistent with its obligation, has reviewed the Complaint to determine whether it provides a basis for subject matter jurisdiction. It does not. Plaintiffs have not alleged a federal cause of action, as would be necessary to establish federal question jurisdiction under 28 U.S.C. Section 1331. Furthermore, there are insufficient allegations demonstrating diversity jurisdiction under 28 U.S.C. Section 1332 because Plaintiffs have not included the citizenship of each of the parties.
IV. CONCLUSION
Because Plaintiffs' Complaint fails to sufficiently allege subject matter jurisdiction, and because it also fails to adequately plead a cause of action, it is ORDERED and ADJUDGED that
1. Plaintiffs' Complaint is DISMISSED without prejudice. Plaintiffs may file an Amended Complaint on or before August 10, 2015, properly alleging a basis for this Court's jurisdiction, and adequately stating causes of action.
2. Plaintiff International Service Aviation Corporation may not represent itself in this action. If it is included as a plaintiff in any amended complaint filed, it must do so through counsel.
3. All other motions, if any, are DENIED as moot.
4. The Clerk is directed to administratively CLOSE this matter.
DONE and ORDERED in chambers, at Miami, Florida, this 27th day of July 2015.
/s/_________
MARCIA G. COOKE
United States District Judge
Copies furnished to:
Edwin G. Torres, U. S. Magistrate Judge
Counsel of record
Alberto Osorio
8200 NW 12th Avenue
Miami, Florida 33126