United States District Court, M.D. Florida, Fort Myers Division
NAVTECH U.S. SURVEYORS USSA INC., a Florida corporation, as successor to Navtech U.S. Captain U.S. Surveyors, Inc., and NAVTECH U.S. CAPTAIN U.S. SURVEYORS LLC, a Delaware corporation, Plaintiffs,
BOAT/US INC., Defendant.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Defendant Boat/US Inc.'s Motion to Dismiss
the Complaint with Prejudice (Doc. 4) and Memorandum of Law
in Support (Doc. 9),  and Plaintiffs Navtech U.S. Surveyors USSA
Inc. and Navtech U.S. Captain U.S. Surveyors LLC's
(collectively “Navtech”) response in opposition.
(Doc. 19). Navtech also requests oral argument. For the below
reasons, the Court dismisses the Complaint without prejudice
and without oral argument.
facts are based on the Complaint, which the Court must accept
as true at this stage of litigation:
provides marine survey education and licensing. It also has
subscribing members who include marine surveyors. Boat is
also in the marine industry. It is an organization for boat
owners and offers services like helping its members get boat
insurance. Pertinent here, Navtech says that Boat
“refer[s] marine survey opportunities to a preferred
list of licensed marine surveyors” who belong not to
Navtech but to National Association of Marine Surveyors
(“NAMS”) and Society of Accredited Marine
Surveyors (“SAMS”). (Doc. 3 at 2). Because
Navtech is unhappy that Boat does not refer its members, it
sues Boat for tortious interference with business relations
and violating the Florida Unfair Deceptive Trade Practices
Act (“FUDTPA”). It seems Navtech wants this Court
to tell Boat to include Navtech members on its preferred list
moves to dismiss the Complaint for lack of standing, not
stating plausible causes of action, and other pleading
deficiencies. It also claims that its First Amendment right
to free speech bars this suit. Navtech responds that Boat
cannot challenge standing when it argued this Court had
subject matter jurisdiction for removal. Navtech continues
that the First Amendment argument is an affirmative defense
outside the scope of a motion to dismiss and a loser because
Navtech is not a government entity. The Court will start with
is a threshold jurisdictional question of whether a court may
consider the merits of a dispute. Standing originates from
the Constitution's Article III requirement that a federal
court's jurisdiction is limited to actual cases and
controversies. Standing has three elements: “[t]he
plaintiff must have (1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016). The plaintiff must
prove these elements. Id.
Court cannot evaluate these elements because the Complaint
does not say whether Navtech sues Boat on its or its
members' behalf. Without this clarification, the Court
would be offering an advisory opinion on standing.
See Uberoi v. Labarga, No. 17-15123, 2019
WL 1748677, at *4 (11th Cir. Apr. 16, 2019) (“The Court
should not speculate concerning the existence of standing.
Nor should it attempt to piece together an injury sufficient
to confer standing to the plaintiff; the plaintiff must
demonstrate that she has satisfied this burden.”). The
Court will allow Navtech to amend the Complaint to establish
Navtech's argument that Boat cannot challenge standing
because it removed this case to federal court: it is a
nonstarter. Although standing is a jurisdictional issue, it
differs from subject matter jurisdiction needed for removal.
Original jurisdiction like diversity or federal question
jurisdiction governs removal under 28 U.S.C. § 1441.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). And § 1441 does not require proof of standing.
So Boat can remove this case and challenge standing.
Complaint also has pleading problems. First, it is a shotgun
pleading-Count II incorporates all the allegations making up
Count I. See Weiland v. Palm Beach Cnty.
Sherriff's Office, 792 F.3d 1313, 1321 (11th Cir.
2015) (stating an impermissible shotgun pleading is when
“each count adopts the allegations of all preceding
counts, causing each successive count to carry all that came
before and the last count to be a combination of the entire
complaint” (footnote omitted)); see also
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295
(11th Cir. 2018) (“Courts in the Eleventh Circuit have
little tolerance for shotgun pleadings.” (citations
omitted)). Mixing the allegations of Counts I and II leaves
Boat (and the Court) without adequate notice of the claims
against it and the grounds on which each claim rests.
See Weiland, 792 F.3d at 1323. And the
problems with this shotgun pleading are compounded by the
typographical errors, missing information, and incomplete
the Complaint does not state plausible claims for tortious
interference with business relations and a FUDTPA violation.
Federal Rule of Civil Procedure 12(b)(6) allows a defendant
to move to dismiss a pleading for “failure to state a
claim upon which relief may be granted.” Fed.R.Civ.P.
12(b)(6). “To survive a motion to dismiss
[under Rule 12(b)(6)], a complaint must contain 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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require
‘detailed factual allegations,' . . . it demands
more than an unadorned the defendant-unlawfully-harmed-me
accusation.” Id.(quoting Twombly, 550
U.S. at 555). The pleading must contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
deciding a Rule 12(b)(6) motion, a court must accept
well-pleaded allegations of a complaint as true, but it is
not bound to accept legal conclusions couched as facts.
Iqbal, 556 U.S. at 678. And “where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged- but it has not ‘show[n]'-‘that the
plaintiff is entitled to relief.'” Id.
(quoting Fed.R.Civ.P. 8(a)(2)). If a plaintiff has not
“nudged [his] claims across the line from conceivable
to plausible, ” the complaint fails to state claim.
Twombly, 550 U.S. at 570. Navtech does not satisfy
this pleading standard for either count.
state a claim for tortious interference (Count I), a
plaintiff must allege “(1) the existence of a business
relationship that affords the plaintiff existing or
prospective legal rights; (2) the defendant's knowledge
of the business relationship; (3) the defendant's
intentional and unjustified interference with the
relationship; and (4) damage to the plaintiff.”
Int'l Sales & Serv., Inc. v. Austral Insulated
Prod., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001). The
Complaint does not allege how Navtech and Boat have business
relationship, let alone say how Boat knew about some
relationship and unjustifiably interfered with it. Navtech
simply alleges a dislike for Boat's referring marine
surveyors who are not its members. For example, it says
Boat's “anti-competitive” endorsement
“confuses consumers” about surveyors who can
“conduct seaworthiness inspections” for marine
insurance underwriting. (Doc. 3 at 3-4). Then it jumps to the
conclusion that Boat must be ...