Khan v. Tahir et al

Filing 14

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
TAMPA DIVISION
SOHAIL AKBAR KHAN,
Plaintiff,

v.

Case No. 8:17-cv-2440-T-33JSS

IRUM TAHIR and MALIK TAHIR
ASLAM,
Defendants.
________________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

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
granted.
I.

Background
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

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$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
committed

“fraudulent

acts”

during

this

time,

including

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.).
Nazia
without

subsequently

having

received

passed
a

away

in

transplant.

January
(Id.

at

of

2017

¶

26).

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

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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
review.
II.

Legal Standard
On a motion to dismiss for failure to state a claim under

Rule 12(b)(6), this Court accepts as true all the allegations
in

the

complaint

and

construes

them

in

the

light

most

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”).
However:
[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
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true

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a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of

review

must

be

limited

to

the

four

corners

of

the

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.
Dunbar,

919

F.2d

1525,

1529

(11th

Cir.

1990)(citation

omitted).
III. Discussion
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).

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“The

Federal

Rules

of

Civil

Procedure,

pertinent

precedent, sound principles of litigation management, and
fairness

to

the

opposing

party

almost

uniformly

commend

requiring a litigant to submit a complaint that is not a
‘shotgun

pleading’

and

that

otherwise

complies

with

the

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
shotgun
counts

complaints:
where

each

(1)

“a

count

complaint

adopts

the

containing

multiple

allegations

of

all

preceding counts”; (2) a complaint that is “replete with
conclusory,

vague,

and

immaterial

facts

not

obviously

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
“assert[s]

multiple

claims

against

multiple

defendants

without specifying which of the defendants are responsible
for which acts or omissions, or which of the defendants the
claim

is

brought

against.”

Weiland

v.

Palm

Beach

Cty.

Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015).
Here, at the beginning of each of the five causes of
action,

the

reference”

Complaint

all

the

“re-alleges

preceding

5

and

paragraphs

incorporates
—

not

only

by
the

Complaint’s factual allegations. (Doc. # 1 at ¶¶ 33, 43, 50,
58, 63). Thus, the allegations in each cause of action about
Defendants’

purported

civil

theft,

unjust

enrichment,

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
counts

where

each

count

adopts

the

allegations

of

all

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
the

plaintiff

and

defendants

and

that

the

amount

in

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

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Defendants reside and are domiciled in Florida. (Doc. # 1 at
¶¶

2-4,

6,

14).

But

residency

is

not

citizenship,

and

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
person.”).
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
are

“citizen[s]

of

this

state.”

(Doc.

#

1-5

at

1).

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
foreign

country.

(Id.).

But,

Khan

has

not

specifically

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

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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
WL

5294321,

at

*13

n.15

(S.D.

Ala.

Sept.

8,

2015)(“The

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:
(1)

Defendants Irum Tahir and Malik Tahir Aslam’s Motion to
Dismiss

the

Complaint

(Doc.

#

9)

is

GRANTED.

The

Complaint (Doc. # 1) is DISMISSED.
(2)

Plaintiff

Sohail

Akbar

Khan

may

file

an

amended

complaint by December 14, 2017, failing which, the case
will be dismissed without further notice.

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DONE and ORDERED in Chambers in Tampa, Florida, this
30th day of November, 2017.

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