Intersport Inc et al v. T-Town Tickets LLC

Filing 18

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/12/2012. (KAM, )

FILED
2012 Sep-12 PM 01:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
INTERSPORT, INC.; DOUBLE EAGLE )
CLUB, INC.,
)
)
Plaintiffs,
)
)
vs.
)
)
T-TOWN TICKETS LLC,
)
)
Defendant.
)

Case No. 7:11-cv-04069-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant’s Amended Motion to
Dismiss, (doc. 6),1 and plaintiffs’ Motion to Strike, (doc. 13). Defendant moves for dismissal
of this action, in its entirety, for: (1) lack of subject matter jurisdiction; (2) lack of personal
jurisdiction; (3) improper venue; (4) failure to state a claim upon which relief can be granted;
and (5) failure to join an indispensable party. Upon consideration of the record, the
submissions of the parties, the arguments of counsel, and the relevant law, the court is of the
opinion that defendant’s Amended Motion to Dismiss, (doc. 6), is due to be denied and
plaintiffs’ Motion to Strike, (doc. 13), is moot.

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

I. STATEMENT OF FACTS
Plaintiffs Intersport Inc., (“Intersport”), an Illinois corporation, and Double Eagle
Club, Inc., (“Double Eagle”), a Georgia corporation, (collectively, the “plaintiffs”) are sports
and entertainment marketing companies who purchase tickets to various sporting events as
a part of each company’s business. (Doc. 1 ¶¶ 1-2, 6.) Defendant T-Town Tickets
(“defendant”) is an Alabama limited liability company engaged in the business of selling
tickets to sporting events. (Id. ¶¶ 3, 7.) The parties have had previous business dealings
together, including the purchase and sale of tickets to the NCAA Men’s Basketball
Tournament, the NCAA Women’s Basketball Tournament, the Masters Golf Tournament,
and the United States Open Championship, among others. (Id. ¶ 8.) Plaintiffs generally
conducted business with defendant through defendant’s authorized representative Raymond
“Lucky” Wells (“Wells”). (Id.)
On or about April 17, 2011, Intersport ordered and purchased from defendant three
tickets to the 2011 Rugby World Cup (“Rugby Tickets”). (Id. ¶ 9.) Intersport wrote
defendant a check for $10,000.00 in exchange for the Rugby Tickets. (Id. ¶¶ 9, 11.) In May
2011, Double Eagle ordered and purchased from defendant forty badges to the 2012 Masters
Tournament (“Masters Badges”). (Id. ¶ 10.) Double Eagle wrote defendant a check for
$80,000.00 in exchange for the Masters Badges. (Id. ¶ 10, 11.) Defendant deposited
plaintiffs’ checks but failed to provide either plaintiff with the respective tickets purchased.
(Id. ¶¶ 12-14.)

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On December 1, 2011, plaintiffs filed the instant action against defendant, asserting
state law claims for breach of contract, unjust enrichment, and tortious interference with
business relations. (Id. ¶¶ 16-29.) On January 23, 2012, defendant filed its first Motion to
Dismiss, (doc. 5). Four days later, defendant filed an Amended Motion to Dismiss, (doc. 6),
with the Affidavit of Candice Carden (doc. 6-1), defendant’s president and founder, attached.
In her affidavit, Carden declares that Wells, now deceased, was the owner of Events
Worldwide, a Florida-based company, and served as an independent broker of defendant’s
tickets. (Doc. 6-1 at 1.) Carden also declares that defendant has no records evidencing the
purchases of the Rugby Tickets or Masters Badges, nor do defendant’s accounting records
reflect that defendant received or deposited plaintiffs’ checks. (Id. at 2.) To Carden’s
knowledge, Wells opened a bank account at Coastal Bank and Trust with documents in his
possession from defendant and deposited plaintiffs’ checks into that account. (Id.) Plaintiffs
moved to strike the Affidavit of Candice Carden. (Doc. 13.)
II. DISCUSSION
A.

MOTION TO STRIKE, (doc. 13)

Defendant attaches the Affidavit of Candice Carden, (doc. 6-1), with its Amended
Motion to Dismiss for the primary purpose of demonstrating that plaintiffs cannot state a
claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Defendant avers
that it cannot be held liable for the misconduct alleged because the Carden affidavit
demonstrates that Wells was an independent broker of defendant’s tickets, not an employee.

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(Doc. 12 at 1.) Plaintiffs move to strike the Affidavit of Candice Carden on the ground that
the affidavit constitutes an improper submission of extrinsic evidence in support of a motion
to dismiss brought under Rule 12(b)(6). (Doc. 13.)
“A court is generally limited to reviewing what is within the four corners of the
complaint on a motion to dismiss.” Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n.7
(11th Cir. 2006). A court may consider extrinsic evidence submitted in conjunction with a
Rule 12(b)(6) motion to dismiss as long as the court converts the motion to dismiss into a
motion for summary judgment under Fed. R. Civ. P. 56 and provides the parties with
adequate notice of its intent to do so. FED. R. CIV. P. 12(d). However, federal courts have
complete discretion whether to consider the submissions of materials outside the pleadings
accompanying a Rule 12(b)(6) motion, and “[a] judge need not convert a motion to dismiss
into a motion for summary judgment as long as he or she does not consider matters outside
the pleadings. According to case law, ‘not considering’ such matters is the functional
equivalent of ‘excluding’ them—there is no more formal step required.” Harper v. Lawrence
County., 592 F.3d 1227, 1232 (11th Cir. 2010); see also Jones v. Auto. Ins. Co. of Hartford,
917 F.2d 1528, 1531-32 (11th Cir. 1990) (“It is within the judge’s discretion to decide
whether to consider matters outside of the pleadings that are presented to the court.
However, if the judge does consider these outside matters, i.e., if the judge does not exclude
them, Rule 12(b) requires the judge to comply with the requirements of Rule 56.” (internal
citations omitted)).

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Here, the court exercises its discretion in excluding the Affidavit of Candice Carden
from consideration and, therefore, declines to convert defendant’s Rule 12(b)(6) motion into
a motion for summary judgment. Whether defendant engaged in the alleged misconduct (or
as defendant has framed the issue, whether Wells was actually an “authorized representative”
or independent broker) is an issue more properly adjudicated at a later date after the parties
have conducted discovery. Because the court will exclude the Carden affidavit from
consideration when ruling on defendant’s Rule 12(b)(6) motion, plaintiffs’ Motion to Strike
is rendered moot.
B.

AMENDED MOTION TO DISMISS, (doc. 6)
1.

Subject Matter Jurisdiction

Defendant first moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(1). (Doc. 6 ¶ 1.)
Under Rule 12(b)(1), a party may move the court to dismiss a case if the court lacks
jurisdiction over its subject matter. The party invoking jurisdiction bears the burden of
establishing the court’s subject matter jurisdiction. See Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994).
Attacks on subject matter jurisdiction consist of two types: “facial attacks” and
“factual attacks.” McElmurray v. Consol. Gov’t of Augusta-Richmond County, 501 F.3d
1244, 1251 (11th Cir. 2007) (citations omitted). “‘Facial attacks’ on the complaint ‘require[]
the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of

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the motion.’” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953
(1980) (citation omitted)).2 Motions alleging facial attacks on subject matter jurisdiction
therefore afford plaintiffs the same procedural safeguards as those in a 12(b)(6) motion, since
the court must consider the allegations in the complaint to be true. “‘Factual attacks,’ on the
other hand, challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered.’” Lawrence, 919 F.2d at 1529 (quoting Menchaca, 613 F.2d at 511 (citation
omitted)); see also Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003)
(deciding that a factual attack had occurred because the motion to dismiss relied on extrinsic
evidence and did not assert a lack of subject matter jurisdiction based solely on the
pleadings). Presented with a factual attack, then,
the trial court may proceed as it never could under 12(b)(6) or Fed.
R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the
trial court’s jurisdiction — its very power to hear the case — there
is substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear the
case. In short, no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of
jurisdictional claims.

2

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the United
States Court of Appeals for the Eleventh Circuit adopted as binding precedent all decisions of the
former United States Court of Appeals for the Fifth Circuit announced prior to October 1, 1981.
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Lawrence, 919 F.2d at 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.),
cert. denied, 454 U.S. 897 (1981) (citation omitted)).
Defendant provides no explanation why the court lacks subject matter jurisdiction
over this dispute, and the Affidavit of Candice Carden contains no evidence contradicting
the Complaint’s jurisdictional allegations. Consequently, the court construes defendant’s
Rule 12(b)(1) argument as a “facial attack” on the court’s subject matter jurisdiction, and the
court accepts the jurisdictional allegations contained in the Complaint as true.
The Complaint alleges that the court has original subject matter jurisdiction over this
dispute under the diversity of citizenship statute, 28 U.S.C. § 1332, and the supplemental
jurisdiction statute, 28 U.S.C. § 1367. (Doc. 1 ¶ 4.) Section 1332(a) provides that federal
courts have original jurisdiction over all civil actions when complete diversity of citizenship
exists between the parties and the amount in controversy “exceeds the sum or value of
$75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). “Complete diversity” means
that the citizenship of every plaintiff must be diverse from the citizenship of every
defendant.” Legg v. Wyeth, 428 F.3d 1317, 1321 n.2 (11th Cir. 2005). Moreover, if a court
has original jurisdiction over at least one plaintiff’s claim, it may exercise supplemental
jurisdiction over other plaintiffs’ claims that do not exceed $75,000 pursuant to Section 1367
if those claims “form part of the same case or controversy” as the claim exceeding the
jurisdictional threshold. 28 U.S.C. § 1367(a); see Exxon Mobil Corp. v. Allapattah Servs.
Inc., 545 U.S. 546, 559 (2005) (“When the well-pleaded complaint contains at least one

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claim that satisfies the amount-in-controversy requirement, and there are no other relevant
jurisdictional defects, the district court, beyond all question, has original jurisdiction over that
claim. The presence of other claims in the complaint, over which the district court may lack
original jurisdiction, is of no moment. If the court has original jurisdiction over a single claim
in the complaint, it has original jurisdiction over a ‘civil action’ within the meaning of
§ 1367(a), even if the civil action over which it has jurisdiction comprises fewer claims than
were included in the complaint.”). When “each claim involves the same facts, occurrences,
witnesses, and evidence . . . [t]his commonality is sufficient to satisfy the constitutional
minimum required by section 1367(a).” Palmer v. Hosp. Auth. of Randolph County, 22 F.3d
1559, 1566 (11th Cir. 1994)).
Addressing diversity of citizenship, the Complaint alleges that Intersport is an Illinois
corporation, Double Eagle is a Georgia corporation, and defendant is an Alabama limited
liability company. (Doc. 1 ¶¶ 1-3.) Without any evidence to the contrary, complete diversity
of citizenship exists between the parties. Moreover, the amount in controversy requirement
is satisfied for both Intersport and Double Eagle. The Complaint’s allegations regarding
Double Eagle satisfy the amount in controversy requirement because it alleges that Double
Eagle suffered damages in excess of $80,000.00. Although the Complaint alleges that
Intersport suffered damages of only $10,000.00, the court is satisfied Intersport and Double
Eagle’s claims “form part of the same case or controversy,” and, therefore, the court may
exercise supplemental jurisdiction over Intersport’s claims pursuant to Section 1367.

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Specifically, the court is satisfied that the disposition of Intersport and Double Eagle’s claims
will involve many of the same witnesses and the operative facts underlying each plaintiff’s
claims are virtually identical. Accordingly, plaintiffs have sufficiently demonstrated that
diversity jurisdiction exists under Section 1332, and defendant’s Amended Motion to Dismiss
for lack of subject matter jurisdiction is due to be denied.
2.

Personal Jurisdiction

Defendant also contends that this case is due for dismissal pursuant to Fed. R. Civ.
P. 12(b)(2) because defendant, an Alabama limited liability company, is not subject to
personal jurisdiction in the Northern District of Alabama. (Doc. 6 ¶ 1.) Defendant supports
this argument by referencing an excerpt of 28 U.S.C. § 1391, the statute governing federal
venue, which states, in part, that a civil action may be brought in “a judicial district in which
a substantial part of the events or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated[.]” 28 U.S.C. § 1391(b)(2).
Defendant argues that the court lacks personal jurisdiction because “[p]laintiffs’ assertion
that a substantial part of the events took place in this district is a bare allegation . . . . [and]
the Complaint is completely devoid of any facts alleging where the alleged events took
place.” (Doc. 12 ¶ 3.) In this case where the events giving rise to this action occurred is not
relevant to the court’s personal jurisdiction analysis.
In diversity actions, a federal district court “may exercise jurisdiction over a . . .
defendant to the same extent as a court of that state.” Ruiz de Molina v. Merritt & Furman

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Ins. Agency, Inc., 207 F.3d 1351, 1355 (11th Cir. 2000) (citing Prejean v. Sonatrach, Inc.,
652 F.2d 1260 (5th Cir. Unit A Aug. 1981)). Alabama Rule of Civil Procedure 4.2(b)
effectively serves as Alabama’s “long-arm” statute and authorizes personal jurisdiction to the
fullest extent permissible under the United States Constitution. Sloss Indus. Corp. v. Eurisol,
488 F.3d 922, 925 (11th Cir. 2007) (citing ALA. R. CIV. P. 4.2(b); Sieber v. Campbell, 810
So. 2d 641, 644 (Ala. 2001)). As required by the United States Constitution, “[a] court may
subject a defendant to judgment only when the defendant has sufficient contacts with the
sovereign such that the maintenance of the suit does not offend traditional notions of fair play
and substantial justice.” J. McIntyre Machinery, Ltd. v. Nicastro, __ U.S. __, 131 S. Ct. 2780,
2787 (2011) (internal quotations and citations omitted). It has been well-established that a
forum state constitutionally and permissibly exercises “general” personal jurisdiction over
persons or entities whom are citizens or residents of the forum state, regardless of whether
the suit arises out of the citizens’ or residents’ contacts with the forum state. See Pennoyer
v. Neff, 95 U.S. 714 (1877) (providing that one means of establishing personal jurisdiction
is to demonstrate that the defendant is a “resident” of the forum state) overruled on other
grounds by Shaffer v. Heitner, 433 U.S. 186 (1977); see also J. McIntyre Machinery, 131 S.
Ct. at 2787 (citations omitted).
Here, defendant, as an Alabama citizen, is undoubtedly subject to “general” personal
jurisdiction under Alabama’s “long-arm” statute, Ala. R. Civ. P. 4.2(b). Therefore, defendant

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is subject to personal jurisdiction in the Northern District of Alabama, and defendant’s
Amended Motion to Dismiss for lack of personal jurisdiction is due to be denied.
3.

Venue

Defendant also moves for dismissal under Fed. R. Civ. P. 12(b)(3), arguing that venue
is improper. In support, defendant selectively quotes 28 U.S.C. § 1391 for the proposition
that venue is only proper in “a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is the subject
of the action is situated.” 28 U.S.C. § 1391(b)(2). Defendant omits the provision of 28
U.S.C. § 1391(b) which provides that a civil action may be brought in “a judicial district in
which any defendant resides, if all defendants are residents of the State in which the district
is located.” 28 U.S.C. § 1391(b)(1). Under this provision, the Northern District of Alabama
is a proper venue because defendant, the only defendant to this action, “resides” within this
district. (Doc. 1 ¶ 5.) Therefore, defendant’s Amended Motion to Dismiss for improper
venue is due to be denied.
4.

Failure to State a Claim

Defendant asserts that this matter is due to be dismissed pursuant to Rule 12(b)(6)
because the Complaint fails to state a claim upon which relief can granted. In response,
plaintiffs simply state that the factual allegations contained in the Complaint sufficiently
support the claims for which they seek relief. (Doc. 8 at 5.) In reply, defendant contends that
plaintiffs’ response is insufficient to overcome dismissal in this matter based upon the

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declarations made in the Affidavit of Candice Carden. (Doc. 12 at 5.) As discussed supra,
the court will exclude the Affidavit of Candice Carden from consideration at this stage.
Thus, the only remaining question is whether the Complaint pleads factual allegations
sufficient to overcome defendant’s Rule 12(b)(6) motion.
To survive a Rule 12(b)(6) motion to dismiss, “the complaint must contain sufficient
factual matter . . . to state a claim to relief that is plausible on its face.” Ironworkers Local
Union 68 v. AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352, 1359 (11th Cir. 2011)
(internal quotations and citations omitted). A claim is “plausible” if the facts are sufficient
“to allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009). “While
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (citations, alterations,
and internal quotation marks omitted). “[W]hile notice pleading may not require that the
pleader allege a ‘specific fact’ to cover every element or allege ‘with precision’ each element
of a claim, it is still necessary that a complaint ‘contain either direct or inferential allegations
respecting all the material elements necessary to sustain a recovery under some viable legal
theory.’” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)
(quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)).

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a.

Breach of Contract (Count One)

To sustain a breach of contract claim under Alabama law, a plaintiff must
demonstrate: “(1) the existence of a valid contract binding the parties in the action, (2) [his]
own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.”
Ex parte Am. Heritage Life Ins. Co., 46 So. 3d 474, 477 (Ala. 2010) (quoting Congress Life
Ins. Co. v. Barstow, 799 So.2d 931, 937 (Ala. 2001)) (quotations omitted). The Complaint
alleges, and the court accepts as true, that defendant entered into valid and binding contracts
with Intersport and Double Eagle under which “[d]efendant agreed to provide forty (40)
Masters 4 Day Badges for the 2012 Masters Golf Tournament and three (3) 2011 Rugby
World Cup tickets.” (Doc. 1 ¶ 17.) The Complaint further alleges that both plaintiffs
performed their obligations under the contracts, that defendant failed to provide either
plaintiff with their purchased tickets, and that plaintiffs have incurred and continue to incur
damages as a result of defendant’s nonperformance. (Id. ¶¶ 18-20.) Accordingly, plaintiffs
have adequately set forth an actionable breach of contract claim and defendant’s Amended
Motion to Dismiss plaintiffs’ breach of contract claim is due to be denied.
b.

Unjust Enrichment (Count Two)

In Alabama, “the essence of . . . unjust enrichment . . . is that a plaintiff can prove
facts showing that defendant holds money which, in equity and good conscience, belongs to
plaintiff or holds money which was improperly paid to defendant because of mistake or

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fraud.” Hancock–Hazlett General Const. Co., Inc. v. Trane Co., 499 So.2d 1385, 1387 (Ala.
1986) (emphasis original). Thus, “to prevail on a claim of unjust enrichment under Alabama
law, a plaintiff must show that (1) the defendant knowingly accepted and retained a benefit,
(2) provided by another, (3) who has a reasonable expectation of compensation.” Matador
Holdings, Inc. v. HoPo Realty Investments, L.L.C., 77 So. 3d 139, 145 (Ala. 2011) (quoting
American Family Care, Inc. v. Fox, 642 So.2d 486, 488 (Ala. Civ. App. 1994)) (quotations
omitted). The Complaint, as a whole, alleges the requisite elements of an unjust enrichment
claim as follows: defendant received and deposited checks from Intersport and Double Eagle
and continues to retain the funds, (doc. 1 ¶¶ 11, 14, 22); plaintiffs made said payments with
the reasonable expectation that defendant would provide them with the Rugby Tickets and
Masters Badges, (id. ¶¶ 9-10, 14); the money received by defendant should be returned to
plaintiffs in equity and good conscience, (id. ¶ 22). Such allegations adequately plead a
viable unjust enrichment claim, and defendant’s Amended Motion to Dismiss plaintiffs’
unjust enrichment claim is due to be denied.
c.

Interference with Business Relations (Count Three)

Under Alabama law, a plaintiff establishes a prima facie case of tortious interference
with business relations by demonstrating the following elements: “(1) the existence of a
protectible business relationship; (2) of which the defendant knew; (3) to which the
defendant was a stranger; (4) with which the defendant intentionally interfered; and (5)
damage.” White Sands Group, L.L.C. v. PRS II, L.L.C., 32 So.3d 5, 14 (Ala. 2009). The

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Complaint alleges that plaintiffs maintain business relationships with customers to whom
they procure and provide tickets, and defendant is cognizant of these business relationships.
(Doc. 1 ¶¶ 25-26.) The Complaint further alleges that defendant intentionally interfered with
plaintiffs’ business relationships “by falsely representing that it could and would procure
forty (40) Masters Badges for the 2012 Masters and three (3) tickets for the 2011 Rugby
World Cup and subsequently refusing to provide those tickets.” (Id. ¶ 27.) Finally, the
Complaint alleges that plaintiffs have incurred damages as the proximate consequence of
defendant’s intentional interference. (Id. ¶ 29.) These allegations sufficiently set forth an
actionable tortious interference with business relations claim and defendant’s Amended
Motion to Dismiss is due to be denied.
5.

Failure to Join an Indispensable Party

Defendant moves to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(7) based
upon plaintiffs’ purported failure to join an indispensable party. Specifically, defendant
contends that the Wells Estate constitutes an indispensable party to this action as defined by
Fed. R. Civ. P. 19 because Wells, now deceased, is the individual who sold plaintiffs the
Masters Badges and Rugby Tickets.
Rule 12(b)(7) provides that courts may dismiss suits where plaintiffs fail to join
indispensable parties. To determine whether dismissal is appropriate based on a plaintiff’s
failure to join an indispensable party, courts must apply the criteria set forth in Rule 19 . See
Challenge Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir. 1982).

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Before the court examines whether an absent party is an indispensable party, the court must
determine whether the absent party constitutes a “necessary” party under Rule 19(a)(1). Rule
19(a)(1) set forth two categories of “necessary” parties who must be joined if feasible:
A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief
among existing parties; or
(B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to
protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of
the interest.
FED. R. CIV. P. 19(a)(1). If the person should be joined as a “necessary” party under Rule
19(a)(1), “but cannot be (because, for example, joinder would divest the court of
jurisdiction),” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1279
(11th Cir. 2003) (emphasis added), the court “must then ascertain, applying the factors in
Rule 19(b), whether the party is indispensable or if the litigation may continue in that party’s
absence.” Developers Sur. & Indem. Co. v. Harding Village, Ltd., No. 06-21267-CIV, 2007
WL 465519, at *3 (S.D. Fla. Feb. 9, 2007) (citing Focus on the Family, 344 F.3d at 1280).
“The movant bears the burden of establishing that a party is necessary or indispensable under
Rule 19.” Hardy v. IGT, Inc., No. 2:10-CV-901-WKW, 2011 WL 3583745, at *2 (M.D. Ala.

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Aug. 15, 2011) (citing Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1347
(11th Cir. 2011)).
Defendant has not met its threshold burden of demonstrating that Wells Estate is a
“necessary” party who should be, but cannot be, joined under Rule 19(a). Defendant makes
no showing that complete relief is impossible absent the joinder of Wells Estate. Nor has
defendant sufficiently demonstrated that the Wells Estate has any interest in this litigation
or that the continuation of this case to judgment would expose defendant to a risk of
incurring double or inconsistent obligations. As plaintiffs correctly point out, defendant is
welcome to move for leave to file a third-party complaint against the Wells Estate if
defendant believes it has a meritorious claim the Estate.
Moreover, even assuming defendant could establish that the Wells Estate is a
necessary party, defendant cannot demonstrate that the Estate cannot be joined to this action.
To the contrary, Wells was a resident of Florida at the time of his death, and presumably, his
estate is also located in Florida. Therefore, the joinder of the Estate would not divest the
court of diversity jurisdiction. Accordingly, defendant’s Amended Motion to Dismiss for
failure to join an indispensable party is due to be denied.3

3

Defendant also makes no effort to show that the Estate is an indispensable party under
Rule 19(b).
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CONCLUSION
For the foregoing reasons, the court is of the opinion that defendant’s Amended
Motion to Dismiss, (doc. 6), is due to be denied and plaintiffs’ Motion to Strike, (doc. 13),
is rendered moot. An Order denying defendant’s Amended Motion to Dismiss will be
entered contemporaneously with this Memorandum Opinion.
DONE, this 12th day of September, 2012.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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