Bander et al v. Aerovanti, Inc. et al

Filing 36

ORDER DENYING 35 Motion for Default Judgment. The Complaint 1 is DISMISSED WITHOUT PREJUDICE. The Entries of Clerk's Defaults (Dkts. 19, 20, 21, 22, 23, 33, and 34) are SET ASIDE. The Clerk is directed to CLOSE the case. Signed by Judge Mary S. Scriven on 6/4/2024. (KBC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
Steven Bander, Individually and Joseph
Cashia, Individually
Plaintiffs,
vs.

Case No: 8:23-cv-01894-MSS-AAS

Aerovanti, Inc, Aerovanti Aviation,
LLC, Aerovanti Aircraft, LLC,
Aerovanti Capital, LLC, Aerovanti
Maintenance, LLC, Aerovanti Hangar,
LLC, Aerovanti Hangar, LLC,
Aerovanti Brokerage, LLC,
Tombstone Holdings, LLC, Benjamin
Ricketts, Individually, and Patrick
Tormay Britton-Harr, Individually
Defendants.
ORDER
THIS CAUSE comes before the Court for consideration of Plaintiffs’ Motion
for Default Judgment. (Dkt. 35) Upon consideration of all relevant filings and case
law, and being otherwise fully advised, the Court DENIES Plaintiffs’ Motion for
Default Judgment, DISMISSES the Complaint WITHOUT PREJUDICE, and SETS
ASIDE the Entries of Clerk’s Default.
I.

BACKGROUND
On August 22, 2023, Plaintiffs Steven Bander, a resident of Florida, and Joseph

Cashia, a resident of Georgia, brought this action against Defendants seeking damages

under claims for (i) alter-ego theory; (ii) breach of contract; (iii) fraudulent
misrepresentation; (iv) recission; (v) aiding and abetting fraud; and (vi) negligent
misrepresentation. (Dkt. 1) On September 25, 2023, Plaintiffs filed an affidavit of
service providing that on September 19, 2023, Defendants Aerovanti, Inc; Aerovanti
Aviation, LLC; Aerovanti Aircraft, LLC; Aerovanti Capital, LLC; and Aerovanti
Maintenance, LLC were served with a copy of the Summons and Complaint. (Dkts.
7, 8, 9, 10, 11) On November 20, 2023, Plaintiffs filed an affidavit of service providing
that on November 14, 2023, and November 17, 2023, Defendants Tombstone
Holdings, LLC and Aerovanti Hangar, LLC were served with a copy of the Summons
and Complaint. (Dkts. 27, 28)
To date, these Defendants have failed to file an Answer or other responsive
pleading in this case. On October 18, 2023, and December 11, 2023, upon Plaintiffs’
motions for entry of default, the Clerk entered default against Aerovanti, Inc;
Aerovanti Aviation, LLC; Aerovanti Aircraft, LLC; Aerovanti Capital, LLC; and
Aerovanti Maintenance, LLC. (Dkts. 19, 20, 21, 22, 23, 33, 34) Plaintiffs now seek a
final judgment of default against the Defaulting Defendants pursuant to Federal Rules
of Civil Procedure 54(b) and 55(b). (Dkt. 35)
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 55(b)(2), a court may enter a default

judgment against a party who has failed to plead in response to a complaint. Solaroll
Shade & Shutter Corp. v. Bio-Energy Sys., 803 F.2d 1130, 1134 (11th Cir. 1986). All
well-pleaded allegations of fact are assumed to be true and deemed admitted upon
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entry of default. See Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975).
Before entering a default judgment, however, the Court must establish that it
has subject matter jurisdiction over the claims. Federal courts are obligated to inquire
into subject matter jurisdiction sua sponte whenever it may be lacking, regardless of
whether it is challenged by the parties. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 409 (11th Cir. 1999).
Subject matter jurisdiction may be found under a specific statutory grant, federal
question jurisdiction under 28 U.S.C. § 1331, or diversity jurisdiction under 28 U.S.C.§
1332. Thermoset Corp. v. Bldg. Materials Corp of Am., 849 F.3d 1313, 1317 (11th
Cir. 2017). The burden of establishing jurisdiction rests upon the party invoking it.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Without
jurisdiction, the Court is powerless to continue and should dismiss the case. Univ. of
S. Ala., 168 F.3d at 410.
III.

DISCUSSION

Plaintiffs request an entry of final judgment of default against Defendants for
claims asserted under Counts III and VI (Fraudulent Misrepresentation) and Count II
and Count V (Breach of Contract). Upon review, because the Court concludes that it
lacks subject matter jurisdiction, it DENIES the Motion for Default Judgment,
DISMISSES the Complaint WITHOUT PREJUDICE, and SETS ASIDE the entries
of Clerk’s default.

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a. Subject Matter Jurisdiction
In the Complaint, Plaintiffs allege the Court has subject matter jurisdiction
under 28 U.S.C. § 1332(a)(1) which provides that federal district courts have original
jurisdiction over “all civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interests and costs, and is between . . . citizens of
different States.” (Dkt. 1 at ¶ 15). The statutory language “between citizens of different
states” requires complete diversity between all plaintiffs and defendants. Univ. of S.
Ala., 168 F.3d at 412. And the plaintiff bears the burden to show complete diversity of
citizenship.
Absent from the Complaint is any mention of citizenship. Plaintiffs instead
reference the individual parties’ various places of residence. However, a party’s
citizenship is not determined by its residency. See McCormick v. Aderholt, 293 F.3d
1254, 1257 (11th Cir. 2002). Instead, an individual’s citizenship is determined by its
domicile for purposes of diversity jurisdiction. Id. Domicile generally requires physical
presence in the state and the intent to remain indefinitely. Id. Thus, domicile is not
synonymous with residence. See Molinos Valle Del Cibao, C. por A. v. Lama, 633
F.3d 1330, 1341 (11th Cir. 2011). The Complaint alleges Plaintiff Steven Bander is a
resident of Florida and Defendants Patrick Tormay Britton-Harr and Benjamin
Ricketts are residents of Florida. (Dkt. 1 at ¶ 1, 12, 13) If these individuals are
domiciled in Florida, this alone destroys complete diversity.
Regarding the Defendant corporations, citizenship is determined by the state of
incorporation and principal place of business. Hertz Corp. v. Friend, 559 U.S. 77, 80
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(2010). The principal place of business is where a corporation’s officers control, direct,
and coordinate its activities, which is typically its headquarters. Id. at 92. Plaintiffs
allege Defendant Aerovanti Brokerage, Inc. is incorporated in Florida with its
principal place of business also in Florida. (Dkt. 1 at ¶ 10) Similarly, Defendant
Aerovanti, Inc. is alleged to be incorporated in Delaware, with its principal place of
business in Maryland and its headquarters in Florida. (Dkt. 1 at ¶ 3) The Complaint
further states that although Aerovanti, Inc.’s principal place of business is in Maryland
and it is headquartered in Florida, Aerovanti is not registered as a foreign corporation
authorized to conduct business in either state. (Dkt. 1 at ¶ 3) However, a failure to
register to conduct business does not prevent a finding of citizenship regarding the
principal place of business. BR-111 Imports & Exports, Inc. v. Summit Mktg., Inc.,
No. 4:06-CV-0255-HLM, 2006 WL 8434088, at *1 (N.D. Ga. Dec. 20, 2006). Plaintiffs
present no allegation concerning where Defendant Aerovanti Inc.’s officers control,
direct, and coordinate the corporation’s activities and, as Aerovanti Inc. is
headquartered in Florida, it is unclear if the principal place of business is in Maryland
or Florida.
Moreover, Plaintiffs allege citizenship of the limited liability companies named
as Defendants based on the states of incorporation and principal places of business for
each. (Dkt. 1 at ¶ 4, 5, 6, 7, 8, 9, 11) It is well-established that for purposes of diversity
jurisdiction, a limited liability company is a citizen of every state of which its members
are citizens. Thermoset Corp., 849 F.3d at 1317 (quoting Rolling Greens MHP, L.P.
v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004)). Therefore,
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for purposes of diversity jurisdiction, the limited liability companies’ states of
incorporation and principal places of business are irrelevant. Plaintiffs also allege that
Defendants Britton-Harr and Ricketts are founding members, corporate officers,
directors, and/or principals of: Aerovanti Aviation, LLC; Aerovanti Aircraft, LLC;
Aerovanti Capital, LLC; Aerovanti Maintenance, LLC; Aerovanti Hangar-MD, LLC;
Aerovanti Hangar-FL, LLC; and Tombstone Holdings, LLC. (Dkt. 1. at ¶ 13, 14)
Therefore, if either Ricketts or Britton-Harr is a citizen of Florida as alleged, these
companies are all also citizens of Florida.
Plaintiffs have therefore failed to allege complete diversity of citizenship as
required under 28 U.S.C. § 1332(a)(1) to invoke this Court’s diversity jurisdiction in
this case. As such, the Court must dismiss Plaintiffs’ Complaint, and the merits of the
case cannot be considered. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(“[W]hen a federal court concludes it lacks subject matter-jurisdiction, the complaint
must be dismissed in its entirety.”); Fed. R. Civ. P. 12(h)(3) (requiring the Court to
“dismiss the action” after determining it lacks subject–matter jurisdiction).
Additionally, pursuant to the Federal Rule of Civil Procedure 55(c), the entries of
Clerk’s defaults are set aside for lack of subject matter jurisdiction.
IV.

CONCLUSION

Upon consideration of the foregoing, it is hereby ORDERED as follows:
1.

Plaintiffs’ Motion for Default Judgment (Dkt. 35) is DENIED.

2.

The Complaint (Dkt. 1) is DISMISSED WITHOUT PREJUDICE.

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3.

The Entries of Clerk’s Defaults (Dkt. 19, 20, 21, 22, 23, 33, 34) are SET
ASIDE.

4.

The Clerk is directed to CLOSE the case.

DONE and ORDERED in Tampa, Florida, this 4th day of June 2024.

Copies furnished to:
Counsel of Record
Any Unrepresented Person

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