United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court upon the Bank
Defendants' Omnibus Motion to Dismiss the Complaint, ECF
No.  (“Bank Defendants' Motion to
Dismiss”), UBS AG's Motion to Dismiss the
Complaint, ECF No.  (“UBS's Motion to
Dismiss”), EFV and EBK-Eidgenoessische
Bankenkommission's (“FINMA”) (collectively
“the Swiss Confederation”) Motion to Dismiss, ECF
No.  (“Swiss Confederation's Motion to
Dismiss”), Plaintiff's Motion to Dismiss the Appeal
and Removal as Untimely, ECF No. 
(“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. 
(“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.
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. , and the Swiss
Bank Defendants,  thereafter, filed their own Notice of
Removal also on federal question grounds. See ECF
No. . 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.  (“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.
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. 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.  at 6 (“ATS/ATCA (Alien Tort
Claims Act): Then its also very important to understand, that
I sue under ATS/ATCA.”); ECF No.  at 7 (“I
sue under ATS/ATCA for crimes that took place in Switzerland
and where the Swiss law applies.”); ECF No.  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.”).
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. . Plaintiff
did not file a response to the Bank Defendants' Motion to
Dismiss, so the Court entered an Order requiring one.
See ECF No. . Plaintiff thereafter filed his
Response. See ECF No. . UBS also filed a
separate Motion to Dismiss, ECF No. , 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. . Although the Court ordered
Plaintiff to file a response to UBS's Motion to Dismiss,
ECF No. , Plaintiff failed to file one.
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. . 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. .
Plaintiff thereafter filed his response and the Swiss
Confederation timely filed its Reply. See ECF Nos.
 and . 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. , , and .
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.  and . 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. . 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.
 at 3 (“I already decided April 25,
2018 to strike the 26x corp. (banks).”)
(emphasis in original); ECF No.  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.
Motion to Dismiss
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)).
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)).
Pro Se Litigants
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).
The Swiss Confederation's Motion to Strike
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. . According to the
Swiss Confederation, this filing is nothing more than an
unauthorized Sur-reply to its Motion to Dismiss. See
ECF No. . The Court agrees.
cover sheet appended to ECF No.  labels the filing as a
“Motion to Dismiss the Appeal and Removal as
Untimely.” ECF No.  at 1. However, the title of
the attached memorandum, “Plaintiffs'
Response to the Replay [sic] (DE-105) but Motion to
Dismiss the EFV's and EBK-FINMA's Appeal and Removal
as Untimely, ” and its content reveals that it is a
Sur-reply. See ECF No.  at 3-16 (emphasis
added). Indeed, the filing is a direct response to the
arguments raised in the Swiss Confederation's Reply at
ECF No. . Plaintiff does not dispute the Swiss
Confederation's characterization of his filing and does
attempt to demonstrate otherwise. See ECF No. 
at 6 (“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!”). Instead, Plaintiff argues two points.
The first is that the Swiss Confederation missed the deadline
to file its response to the Complaint and therefore
“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 ...