Clarke et al v. PNC Bank

Filing 4

ORDER DISMISSING PRO SE Complaint. Signed by Judge Rodolfo A. Ruiz, II on 4/27/2021. See attached document for full details. (kbm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-CV-60852-RAR
JULIUS CLARKE, et al.,
Plaintiffs,
v.
PNC BANK,
Defendant.
________________________________/
ORDER DISMISSING PRO SE COMPLAINT
THIS CAUSE comes before the Court upon an initial screening pursuant to 28 U.S.C. §
1915. Plaintiffs filed their Complaint [ECF No. 1] and Motion for Leave to Proceed In Forma
Pauperis [ECF No. 3] on April 19, 2021. Because Plaintiffs moved to proceed in forma pauperis,
the screening provisions of the Prison Litigation Reform Act, 28 U.S.C. § 1915(e), are applicable.
Pursuant to that statute, the court is permitted to dismiss a suit “any time [ ] the court determines
that . . . (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.” Id. § 1915(e)(2). Therefore, upon receiving Plaintiff’s request to proceed in forma
pauperis, the Court is required to assess the merits of the Complaint before allowing Plaintiff to
proceed any further. See Copeland v. Schwartz, No. 07-CIV-60818, 2007 WL 9717317, at *1
(S.D. Fla. July 10, 2007); see also Mehmood v. Guerra, 783 F. App’x 938, 940 (11th Cir. 2019)
(“[U]nder § 1915(e), district courts have the power to screen complaints filed by all IFP litigants,
prisoners and non-prisoners alike.”); Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004)
(“[S]ection 1915(e)(2)(B)(ii) directs the district court to dismiss the complaint of any plaintiff

proceeding in forma pauperis if the court determines that the complaint fails to state a claim on
which relief may be granted.”) (quotations omitted).
Here, upon initial screening of the Complaint, the Court finds that it fails to state a claim
upon which relief may be granted. Accordingly, Plaintiffs’ Complaint is DISMISSED for the
reasons set forth herein.
ANALYSIS
The Eleventh Circuit has held plainly that “[t]he standards governing dismissals under Rule
12(b)(6) apply to § 1915(e)(2)(B)(ii).” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
To state a claim for relief, a pleading must contain “(1) a short and plain statement of the grounds
for the court’s jurisdiction...; (2) a short and plain statement of the claim showing that the pleader
is entitled to relief; and (3) a demand for the relief sought.” FED. R. CIV. P. 8. To survive a motion
to dismiss, a claim “must contain sufficient 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)). “To state a plausible claim for relief, the plaintiff[]
must plead ‘factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th
Cir. 2009) (alteration added) (quoting Iqbal, 556 U.S. at 678).
As a general rule, “[p]ro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998). However, the application of this principle is “attenuated”
here because both Plaintiffs are registered foreign lawyers who hold Masters of Law degrees from
the University of Miami School of Law, Compl. at 2-3, and thus have “formal training and
considerable experience in the law.” Campbell v. Verizon Wireless, LLC, No. 14–0517, 2015 WL
416484, at *1 n.2 (S.D. Ala. Jan. 29, 2015) (citations omitted); see also Sulehria v. New York, No.
1:12–CV–21, 2012 WL 4911425, at *3 (N.D.N.Y. Sept. 17, 2012) (“While generally, the court
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must liberally construe pleadings prepared by pro se plaintiffs, plaintiff in this case states that he
has both a law degree, albeit foreign, and an LLM from an American law school, and thus is not
entitled to the deference that would be afforded to a nonattorney.”) (citing Tracy v. Freshwater,
623 F.3d 90, 102 (2d Cir. 2010)), report and recommendation adopted, 2012 WL 4911424
(N.D.N.Y. Oct. 15, 2012).
In addition, Rule 10(b) of the Federal Rules of Civil Procedure requires that a party “state
its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” FED. R. CIV. P. 10(b). “The purpose of these rules is ‘to require the pleader to
present his claims discretely and succinctly so that his adversary can discern what he is claiming
and frame a responsive pleading, the court can determine which facts support which claims and
whether the plaintiff has stated any claims upon which relief can be granted, and, at trial, the court
can determine that evidence which is relevant and that which is not.’” Clarke v. Paypal Holdings
Inc., No. 21-60601, 2021 WL 1318224, at *1 (S.D. Fla. Apr. 8, 2021) (quoting T.D.S. Inc. v. Shelby
Mutual Ins. Co., 760 F.2d 1520, 1544 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)).
In their Complaint, Plaintiffs generally aver that Defendant PNC Bank’s Automated Teller
Machines (ATMs) malfunctioned, and because Plaintiffs were consequently unable to complete a
planned money transfer to further a business relationship, Defendant tortiously interfered with that
relationship. Specifically, the Complaint alleges that Plaintiff Julius Clarke intended to send his
business partner and co-Plaintiff Aidar Oruzbaev $3,400 for payment of a bond in a Kyrgyzstan
court where Oruzbaev was located. Compl. at 4. This payment was purportedly going to allow
Oruzbaev to arbitrate a matter in Kyrgyzstan, and Plaintiffs’ client in Kyrgyzstan was allegedly
contracted to pay Oruzbaev $78,000 once the $3,400 bond payment was received and entered in
the Kyrgyzstan court. Id. Clarke went to an ATM operated by Defendant on March 21, 2021 to
make the transaction, but after inserting the third and final cash installment into the machine, “the
entire ATM . . . without warning, relinquished Plaintiff Julius Clarke’s business debit card back to
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him, and started powering down completely, thereby becoming inoperable.” Id. Clarke proceeded
to transfer the funds via Western Union, but the funds reached Oruzbaev too late for the bond
payment to be made, and thus the business opportunity fell through. Id. at 4-5.
Clarke contacted an agent of Defendant’s on the night of the transaction and the morning
after, informing the agent that “but for their ATM’s malfunction[,]” he would not have lost his
business engagement in Kyrgyzstan. Id. Defendant’s agent allegedly informed Clarke that an
investigation would be launched into the matter, and to expect a response within 10 days, but
Plaintiffs aver that the matter remains unresolved. Id. at 5. Plaintiffs thus assert one count for
tortious interference with contract. Id. at 6-7.
Plaintiffs’ Complaint contains no numbered paragraphs. As a result, the Complaint must
be stricken for failure to comply with the pleading requirements of Rule 10 of the Federal Rules
of Civil Procedure. See Clarke, 2021 WL 1318224, at *2 (striking a complaint from the same
Plaintiff for an identical failure to number paragraphs in his complaint). More importantly, even
if Plaintiffs had complied with Rule 10, the Complaint fails to state a claim. “The elements of
tortious interference with a business relationship are ‘(1) the existence of a business
relationship . . . (2) knowledge of the relationship on the part of the defendant; (3) an intentional
and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff
as a result of the breach of the relationship.’” Id. (quoting Ethan Allen, Inc. v. Georgetown Manor,
Inc., 647 So. 2d 812, 814 (Fla. 1994)). 1 Here, there is a critical, incurable problem with Plaintiffs’
Complaint: it is based on negligence. Plaintiffs admit that “while the Defendant PNC Bank’s ATM
malfunction may not have been intentional,” negligence should be inferred under the doctrine of

1

Florida courts have determined that tortious interference with a business relationship and tortious
interference with a contract are nearly identical causes of action, with the “only material difference” being
“in one there is a contract and in the other there is only a business relationship.” Smith v. Ocean State Bank,
335 So. 2d 641, 642 (Fla. 1st DCA 1976). Here, Plaintiffs generally allege the existence of a contract.

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res ipsa loquitor. Compl. at 8-10. This is antithetical to a claim for tortious interference with
contract.
It is black-letter law that “[t]here is no such thing as a cause of action for interference
which is only negligently or consequentially effected.” Ethyl Corp. v. Balter, 386 So. 2d 1220,
1224 (Fla. 3d DCA 1980) (citations omitted). Intent is evidenced by the tortfeasor interfering to
gain a business advantage or interfering out of malice. Tamiami Trail Tours, Inc. v. Cotton, 463
So. 2d 1126, 1127 (Fla. 1985). To prove malice, it must be shown that a party’s actions “indicate
a plan or course of conduct motivated by spite, ill-will, or other bad motive.” Rockledge Mall
Assocs., Ltd. v. Custom Fences of S. Brevard, Inc., 779 So. 2d 554, 557 (Fla. 5th DCA 2001)
(citation omitted). Stated differently, “[i]n order to prevail on a tortious interference claim, a
plaintiff must establish the defendant’s intent to interfere, as opposed to the defendant’s mere intent
to act.” Maxi-Taxi of Fla., Inc. v. Lee Cty. Port Auth., No. 2:07–cv–82–FtM–34SPC, 2008 WL
1925088, at *16 (M.D. Fla. Apr. 29, 2008).
Thus, courts routinely dismiss claims for tortious interference based on allegations of
inadequate care for business relationships as opposed to purposeful conduct targeted at disturbing
such business relationships. See, e.g., Berene v. Nationstar Mortg. LLC, No. 14-61153, 2015 WL
13779240, at *4 (S.D. Fla. May 20, 2015) (dismissing claim for tortious interference based on
allegation that defendant “inadequately tracked (or monitored) the level of insurance on their
property leading to the wrongful purchase of force-placed insurance on their account. This
allegation [was] insufficient because the claim of tortious interference is an intentional tort but the
word inadequate indicates negligence.”) (internal citation and quotations omitted); Maxi-Taxi,
2008 WL 1925088, at *16-17 (rejecting plaintiff taxicab company’s argument that defendant’s
implementation of a regulation that restricted the plaintiff from using certain traffic lanes and
parking areas at the airport intentionally disrupted the relationship between plaintiff and its
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customers since the evidence indicated that defendant promulgated the regulation in order to
address issues of traffic congestion, public safety, and airport security). Plaintiffs’ Complaint is
clearly of the former variety, as they concede they have no evidence that Defendant intentionally
interfered with their business relationship. Consequently, their claim for tortious interference with
contract must be dismissed.
The dismissal of Plaintiffs’ claim is with prejudice. Although district courts generally give
plaintiffs at least one chance to amend a deficient complaint before dismissing it with prejudice,
that need not be the case “(1) where there has been undue delay, bad faith, dilatory motive, or
repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing
amendment would cause undue prejudice to the opposing party; or (3) where amendment would
be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Here, even a more carefully
drafted complaint could not state a valid claim because Plaintiffs’ sole count for tortious
interference with contract is impermissibly based on negligence—and Plaintiffs concede that
Defendant did not intentionally interfere with their contractual arrangement. See Jemison v.
Mitchell, 380 F. App’x 904, 907 (11th Cir. 2010) (dismissal of a pro se plaintiff’s complaint with
prejudice “is proper . . . if a more carefully drafted complaint could not state a valid claim.”).
CONCLUSION
For the reasons stated herein, it is hereby ORDERED AND ADJUDGED that Plaintiffs’
Complaint [ECF No. 1] is DISMISSED with prejudice. All pending motions are DENIED as
moot. The Clerk is instructed to CLOSE this case.
DONE AND ORDERED in Fort Lauderdale, Florida, this 27th day of April, 2021.

_________________________________
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE
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