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Wildhaber v. EFV

United States District Court, S.D. Florida

June 21, 2018

EFV, et. al., Defendants.



         THIS CAUSE came before the Court upon the Bank Defendants' Omnibus Motion to Dismiss the Complaint, ECF No. [56] (“Bank Defendants' Motion to Dismiss”), UBS AG's Motion to Dismiss the Complaint, ECF No. [62] (“UBS's Motion to Dismiss”), EFV and EBK-Eidgenoessische Bankenkommission's (“FINMA”) (collectively “the Swiss Confederation”) Motion to Dismiss, ECF No. [77] (“Swiss Confederation's Motion to Dismiss”), Plaintiff's Motion to Dismiss the Appeal and Removal as Untimely, ECF No. [106] (“Plaintiff's Sur-reply”), and the Swiss Confederation's Motion to Strike Plaintiff's Motion to Dismiss the Appeal and Removal as Untimely, ECF No. [108] (“Motion to Strike”). For the reasons explained below, the Bank Defendants' Motion to Dismiss, UBS's Motion to Dismiss, the Swiss Confederation's Motion to Dismiss, and the Motion to Strike are granted.

         I. BACKGROUND

         Plaintiff, a pro se litigant, originally filed this lawsuit in the Seventeenth Judicial Circuit in and for Broward County, Florida. See ECF No. [1-1]. The Swiss Confederation removed the lawsuit to the Southern District of Florida based on federal question jurisdiction, ECF No. [1], and the Swiss Bank Defendants, [1] thereafter, filed their own Notice of Removal also on federal question grounds. See ECF No. [3]. The Swiss Bank Defendants then filed a Notice of Related Action, informing the Court that Plaintiff, through his corporation, originally filed a lawsuit raising the same claims and allegations against some of the same Defendants in Human Rights Defenders, Inc. v. Swiss Confederation & Zürcher Kantonalbank, No. 17-61212-CV-DIMITROULEAS. See ECF No. [4] (“the predecessor lawsuit”). In the predecessor lawsuit, Judge Dimitrouleas dismissed the claims without prejudice because the Plaintiff corporation was not represented by counsel. In this subsequent lawsuit, Plaintiff, as an individual, filed nearly identical claims.

         Plaintiff's Complaint, while difficult to understand, raises claims arising from a series of actions that occurred in Switzerland in 1988 and 1989. Specifically, Plaintiff alleges that in 1988, a referendum was held in Switzerland involving a proposal to restrict land speculation, which 70% of the voters rejected. See ECF No. [1-1] at ¶¶ 6-7. Despite the referendum's failure, on October 6, 1989, the Swiss Federal Council adopted a decree that discouraged land speculation and imposed time restrictions on the sale of property. Id. at ¶ 8. Following the enactment of the decree, Plaintiff alleges that many individuals in Switzerland, including him, suffered economic harm. Id. at ¶ 15-16. According to Plaintiff, this was a violation of the Swiss Constitution and constituted a “cold expropriation.” Id. at ¶¶ 23-24. Against this background, Plaintiff asserts five counts in his Complaint. Count I is labeled as a claim for general declaratory relief, but the label appears to be a misnomer as nowhere in the count or in the entire Complaint does Plaintiff request a declaration. See generally Id. Instead, Count I seeks “money judgment for << compensatory damage >> of realy [sic] lost assets up 1989 726M$ = are more then a value of 1.5B$ today, adjusted for 27 years inflation 5% interest p.a. up 12.08.2016.” Id. at 11. Count II, in turn, is labeled as a claim for declaratory relief under the Alien Tort Statute while Count III alleges a violation of “International Obligations” under the Swiss Federal Constitution. Id. at 11-13. Count IV is not a claim for relief but is instead a demand for an award of attorney's fees under the “private attorney general doctrine.” Id. at 13-14. And, finally, Count V raises a claim for breach of the Swiss Constitution. Id. at 14-15.[2] Although the Complaint is inartful as pled, Plaintiff has repeatedly taken the position that all of his claims in this action arise under the Alien Tort Statute. See ECF No. [99] at 6 (“ATS/ATCA (Alien Tort Claims Act): Then its also very important to understand, that I sue under ATS/ATCA.”); ECF No. [99] at 7 (“I sue under ATS/ATCA for crimes that took place in Switzerland and where the Swiss law applies.”); ECF No. [99] at 8 (“The defandants [sic] should also start to accept that I sue under ATS/ATCA . . . This allegations [sic] of violations oft he [sic] Swiss Constitution and international law can only be resolved in a U.S. Court. Because of the ATS/ATCA which provides exactly that.”).

         In response to the Complaint, Defendants filed three separate Motions to Dismiss. The Bank Defendants first filed their Motion to Dismiss seeking dismissal on the following grounds: (1) insufficient service of process under Federal Rule of Civil Procedure 12(b)(5); (2) lack of personal jurisdiction under Rule 12(b)(2); (3) improper venue under the doctrine of forum non conveniens; (4) failure to state a claim under the Alien Tort Statute; and (5) expiration of the statute of limitations. See ECF No. [56]. Plaintiff did not file a response to the Bank Defendants' Motion to Dismiss, so the Court entered an Order requiring one. See ECF No. [81]. Plaintiff thereafter filed his Response. See ECF No. [89]. UBS also filed a separate Motion to Dismiss, ECF No. [62], arguing that Plaintiff (1) fails to state a claim for relief because all conduct alleged is extraterritorial, which is not allowed under the Alien Tort Statute; (2) fails to state a claim under Rule 8(a) as Plaintiff has not placed UBS on notice of the claims against it; (3) fails to demonstrate personal jurisdiction over UBS; (4) fails to demonstrate sufficiency of service of process over UBS; (5) impermissibly represents a class despite being a pro se litigant; (6) failed to timely file his claims; and that (7) venue is improper under the forum non conveniens doctrine. See ECF No. [62]. Although the Court ordered Plaintiff to file a response to UBS's Motion to Dismiss, ECF No. [81], Plaintiff failed to file one.

         Finally, the Swiss Confederation filed its own Motion to Dismiss in which it seeks dismissal pursuant to the Foreign Sovereign Immunities Act, the Act of the State doctrine, and the statute of limitations. See ECF No. [77]. The Motion to Dismiss contends that Plaintiff failed to state a claim, evaded a prior Court ruling, failed to effectuate sufficient service of process, and improperly filed class-action claims. Id. Plaintiff again failed to timely respond to the Swiss Confederation's Motion to Dismiss, which prompted the Court to require a response. See ECF No. [98]. Plaintiff thereafter filed his response and the Swiss Confederation timely filed its Reply. See ECF Nos. [99] and [105]. Even though the Swiss Confederation's Motion to Dismiss was fully briefed, Plaintiff thereafter filed an authorized Sur-reply, which is the basis of the Swiss Confederation's Motion to Strike addressed below. See ECF Nos. [106], [108], and [109].

         Also during this timeframe, Defendants filed a Joint Motion to Stay the pre-trial proceedings while the Motions to Dismiss remained pending, which this Court granted. See ECF No. [73] and [107]. During the stay, the United States Supreme Court issued a new opinion interpreting the Alien Tort Statute, Joseph Jesner v. Arab Bank, PLC, 138 S.Ct. 1386 (2018). For that reason, the Court required supplemental briefing addressing the impact, if any, of this new Supreme Court opinion on Plaintiff's claims. See ECF No. [110]. In his Supplemental Briefing, Plaintiff conceded that his claims against UBS and the Swiss Bank Defendants are barred and agreed to proceed solely against the Swiss Confederation. See ECF No. [112] at 3 (“I already decided April 25, 2018 to strike the 26x corp. (banks).”) (emphasis in original); ECF No. [112] at 5 (“Nevertheless, I/we respectfully bow to this judgment and I strike 26x defendants (corp.) . . . This means that 2x remaining defendants EFV & EBK Finma are still liable for damages”) (emphasis in original). With this procedural history in mind, the Court proceeds to analyze the pending Motions to Dismiss and the Motion to Strike.


         a. Motion to Dismiss

         A pleading in a civil action 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). Although a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

         When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanations, ' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).

         b. Pro Se Litigants

         Courts must liberally construe all pleadings submitted by a pro se litigant. See Jarzynka v. St. Thomas Univ. of Law, 310 F.Supp.2d 1256, 1264 (S.D. Fla. 2004). Notwithstanding such leniency, courts cannot serve as de facto counsel for a party and cannot rewrite a deficient pleading for the sake of sustaining an action. Id. (quoting GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)). That is, “[t]he Court cannot simply ‘fill in the blanks' to infer a claim.” Grady v. Georgia Dep't of Correction, No. CV409-103, 2010 WL 322881, at *2 (S.D. Ga. Jan. 27, 2010). In determining whether a pro se litigant has stated a claim, “the court ought not penalize the litigant for linguistic imprecision in the more plausible allegations” while keeping in mind that “wildly implausible allegations in the complaint should not be taken to be true.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).


         a. The Swiss Confederation's Motion to Strike

         Before delving into the three Motions to Dismiss, the Court must first rule on the pending Motion to Strike filed by the Swiss Confederation to determine the universe of filings it must consider in its ruling. After the briefing on the three Motions to Dismiss was complete, the Court received an additional filing from the Plaintiff, which had a cover sheet titled “Motion to Dismiss the Appeal and Removal as Untimely.” See ECF No. [106]. According to the Swiss Confederation, this filing is nothing more than an unauthorized Sur-reply to its Motion to Dismiss. See ECF No. [108]. The Court agrees.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The cover sheet appended to ECF No. [106] labels the filing as a &ldquo;Motion to Dismiss the Appeal and Removal as Untimely.&rdquo; ECF No. [106] at 1. However, the title of the attached memorandum, &ldquo;Plaintiffs&#39; Response to the Replay [sic] (DE-105) but Motion to Dismiss the EFV&#39;s and EBK-FINMA&#39;s Appeal and Removal as Untimely, &rdquo; and its content reveals that it is a Sur-reply. See ECF No. [106] at 3-16 (emphasis added). Indeed, the filing is a direct response to the arguments raised in the Swiss Confederation&#39;s Reply at ECF No. [105]. Plaintiff does not dispute the Swiss Confederation&#39;s characterization of his filing and does attempt to demonstrate otherwise. See ECF No. [109] at 6 (&ldquo;Only because I / Self Represent Litigant (a businessman and not lawyer), made a technical mistake with an << additional memorandum>> ?! This request [referring to the Motion to Strike] is not proportional!&rdquo;). Instead, Plaintiff argues two points. The first is that the Swiss Confederation missed the deadline to file its response to the Complaint and therefore &ldquo;all the entries of the EFV & EBK-FINMA are ZERO and VOID! Even this Motion now to STRIKE my Motion << to Dismiss the Appeal and Removal ...

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