Khan v. Tahir et al
ORDER: Defendants Irum Tahir and Malik Tahir Aslam's Motion to Dismiss the Complaint (Doc. # [9) is GRANTED. The Complaint (Doc. # 1 ) is DISMISSED. Plaintiff Sohail Akbar Khan may file an amended complaint by December 14, 2017, failing which, the case will be dismissed without further notice. Signed by Judge Virginia M. Hernandez Covington on 11/30/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SOHAIL AKBAR KHAN,
Case No. 8:17-cv-2440-T-33JSS
IRUM TAHIR and MALIK TAHIR
Defendants Irum Tahir and Malik Tahir Aslam’s Motion to
Dismiss the Complaint (Doc. # 9), filed on November 15, 2017.
Plaintiff Sohail Akbar Khan responded on November 29, 2017.
(Doc. # 12). For the reasons that follow, the Motion is
Khan, a resident of Pakistan, alleges that his late wife,
Nazia, fell ill and required a lung transplant to survive.
(Doc. # 1 at ¶¶ 4-5, 10-11). In 2015, Khan arranged for his
wife to travel to Tampa, Florida, to be treated and hopefully
receive a transplant at a hospital there. (Id. at ¶¶ 12-13).
To pay for Nazia’s treatment in advance, Khan transferred
$600,000 – the cost quoted for the anticipated transplant and
subsequent care — from his personal bank account to the
hospital’s bank account. (Id. at ¶ 16).
While on the waiting list for a lung transplant, Nazia
stayed with Defendants, her sister and brother-in-law, who
live in Tampa. (Id. at ¶¶ 8-9, 14-15). Defendants allegedly
convincing the ill Nazia to withdraw the $600,000 from the
hospital’s account. (Id. at ¶¶ 19-25). Nazia transferred the
money to a new “joint/payable upon death” account shared with
Defendants, such that Defendants would gain title to the money
upon Nazia’s death. (Id.).
Defendants allegedly falsified Nazia’s death certificate to
state that she was divorced, even though she was legally
married to Khan at the time of her death. (Id. at ¶ 28).
Despite Khan’s requests, Defendants have allegedly refused to
return the money and have used it for their personal benefit.
(Id. at ¶¶ 29-31).
Khan filed his Complaint on October 17, 2017, asserting
claims for civil theft, unjust enrichment, conversion, and
civil conspiracy against both Defendants, as well as a claim
for aiding and abetting fraud against Aslam. (Doc. # 1).
Defendants have moved to dismiss (Doc. # 9), and Khan has
responded in opposition (Doc. # 12). The Motion is ripe for
On a motion to dismiss for failure to state a claim under
Rule 12(b)(6), this Court accepts as true all the allegations
favorable to the plaintiff. Jackson v. Bellsouth Telecomms.,
372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court
favors the plaintiff with all reasonable inferences from the
allegations in the complaint. Stephens v. Dep’t of Health &
Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)(stating
“[o]n a motion to dismiss, the facts stated in [the] complaint
and all reasonable inferences therefrom are taken as true”).
[w]hile 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. Factual allegations must be enough to
raise a right to relief above the speculative
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
Additionally, motions to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) may attack
jurisdiction facially or factually. Morrison v. Amway Corp.,
323 F.3d 920, 924 n.5 (11th Cir. 2003). “‘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 the motion.’” Lawrence v.
Defendants argue the Complaint should be dismissed for
three reasons: (1) it is a shotgun complaint that (2) fails
to allege the citizenships of the parties, as required to
establish this Court’s diversity jurisdiction, and (3) fails
to plead fraud with particularity, as required by Rule 9(b).
(Doc. # 9).
precedent, sound principles of litigation management, and
requiring a litigant to submit a complaint that is not a
salutary rules of pleading.” Stevens v. Barringer, No. 2:11cv-697-UA-SPC, 2013 WL 24272, at *2 (M.D. Fla. Jan. 2, 2013).
The Eleventh Circuit has described four varieties of
preceding counts”; (2) a complaint that is “replete with
connected to any particular cause of action”; (3) a complaint
that does “not separat[e] into a different count each cause
of action or claim for relief”; and (4) a complaint that
without specifying which of the defendants are responsible
for which acts or omissions, or which of the defendants the
Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015).
Here, at the beginning of each of the five causes of
Complaint’s factual allegations. (Doc. # 1 at ¶¶ 33, 43, 50,
58, 63). Thus, the allegations in each cause of action about
conversion, and civil conspiracy are all incorporated into
the fifth cause of action, the aiding and abetting fraud claim
against Defendant Aslam. This is impermissible. See Weiland,
792 F.3d at 1322-23 (stating “a complaint containing multiple
preceding counts” is an impermissible shotgun complaint).
Therefore, the Complaint is dismissed with leave to amend.
Additionally, the Complaint does not explicitly plead
the citizenship of any party. To bring a claim in federal
court pursuant to diversity jurisdiction, the complaint must
allege that complete diversity of citizenship exists between
controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1)(“The
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States”).
Khan’s assertion that the Complaint itself adequately
pleads citizenship is incorrect. (Doc. # 12 at 3-4). The
Complaint only alleges that Khan resides in Pakistan and the
Defendants reside and are domiciled in Florida. (Doc. # 1 at
citizenship is what must be alleged. See Molinos Valle Del
Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n.12 (11th Cir.
2011)(“[C]itizenship, not residence, is the key fact that
must be alleged . . . to establish diversity for a natural
True, an individual is a citizen of the state in which
he or she is domiciled, so Defendants are presumably citizens
of Florida. See McCormick v. Aderholt, 293 F.3d 1254, 1257
(11th Cir. 2002)(“Citizenship is equivalent to ‘domicile’ for
purposes of diversity jurisdiction.”). And, indeed, the Civil
Cover Sheet attached to the Complaint states that Defendants
Nevertheless, for the sake of clarity, Khan should explicitly
allege Defendants’ citizenship in the amended complaint. The
Civil Cover Sheet also states that Khan is a citizen of a
identified his citizenship – i.e. whether he is a citizen of
Pakistan, or another country. In his amended complaint, Khan
should clearly and affirmatively plead his citizenship.
Because the Complaint is a shotgun complaint and fails
to clearly allege the parties’ citizenships, the Court grants
the Motion. As the Court has determined that repleader is
necessary, the Court declines to address Defendants’ argument
that the Complaint fails to sufficiently plead fraud. Cf.
Bennett v. Nationstar Mortg., LLC, No. CV 15-00165-KD-C, 2015
Defendants advance several arguments to dismiss the breach of
contract and FDCPA claims, but the undersigned declines to
address those arguments until these claims are repleaded.”).
Khan may file an amended complaint that is not a shotgun
pleading and that clearly alleges the citizenships of the
parties by December 14, 2017, failing which, the case will be
dismissed without further notice.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendants Irum Tahir and Malik Tahir Aslam’s Motion to
Complaint (Doc. # 1) is DISMISSED.
complaint by December 14, 2017, failing which, the case
will be dismissed without further notice.
DONE and ORDERED in Chambers in Tampa, Florida, this
30th day of November, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?