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					Case 0:12-cv-60817-RSR Document 36 Entered on FLSD Docket 01/31/2013 Page 1 of 15



                               UNITED STATES DISTRICT COURT
                               SOUTHERN DISTRICT OF FLORIDA

                        CASE NO. 12-60817-CIV-ROSENBAUM/SELTZER

  GEORGE R. SIMPSON,

          Plaintiff,

  v.

  RANDAL JAMES HAMILTON ZWINGE, et al.,

        Defendants.
  ________________________________________/

                       ORDER ON DEFENDANTS’ MOTION TO DISMISS

          This matter is before the Court on Defendants’ Motion to Dismiss Amended Complaint [D.E.

  13] and Defendants’ Motion for Sanctions [D.E. 34]. The Court has reviewed the motions,

  pleadings, and record in this case and, for the reasons stated below, grants Defendants’ Motion to

  Dismiss but denies Defendants’ Motion for Sanctions.

                                    I. FACTUAL BACKGROUND

          Plaintiff George R. Simpson (“Simpson”) brings a multi-count Complaint against Defendants

  James Randi (“Randi”), D.J. Grothe (“Grothe”), and the James Randi Educational Foundation

  (“JREF”), based on Defendants’ alleged failure to honor the terms of a contest. Defendants sponsor

  a contest called the “One Million Dollar Challenge,” where Defendants state that they will pay

  $1,000,000 “to any person who demonstrates any psychic, supernatural, or paranormal ability under

  satisfactory observation.” D.E. 9, ¶ 14. The contest provides that any demonstration take place

  “under the rules and limitations” described in the contest application. Id. Any person eighteen years

  old and over with the capacity to enter into legally binding agreements is eligible to enter the contest.

  Id. As a prerequisite to successfully completing the contest, the applicant and JREF must negotiate
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  a protocol for testing the claimed ability. See id. ¶ 28; id. at 23..

          Plaintiff claims that he has been in contact with an extraterrestrial presence for over twenty-

  six years, D.E. 9 at 20. As a result of this extraterrestrial contact and a quarter century of “trial and

  error,” Plaintiff asserts that he has deciphered what he calls the “ET Corn Gods” language, a coded

  language hidden within the English language. Id. ¶¶ 20, 24, 60. Plaintiff believes his ability to

  decode the ET Corn Gods language is “proof of the ‘paranormal’” and asserts that one objective of

  his discovery has been to apply for and win Defendants’ contest. Id. ¶¶ 23, 25.

          Plaintiff Simpson submitted an application on August 18, 2011, to enter Defendants’ contest.

  Id. ¶ 15. On October 3, 2011, Simpson received a letter from Defendant Grothe noting that Plaintiff

  had omitted a component of the application, which Simpson remedied on November 30, 2011. Id.

  ¶¶ 30-31. After several months with no communication from Defendants, Simpson received an

  email stating that JREF needed an additional two or three weeks to evaluate Simpson’s application.

  Id. ¶¶ 32-33. Several more months passed with no word from Defendants, though Simpson alleges

  that he made “numerous emails and phone calls” to JREF that all went unanswered. Id. ¶¶ 34-35.

          Plaintiff also claims he made contact with several unidentified individuals affiliated with

  Defendants, including a “Senior Fellow” at JREF. Id. ¶¶ 36, 38-39. The Senior Fellow allegedly

  told Plaintiff that Defendants would not respond to Simpson because he had previously sued Randi

  and JREF. Id. ¶ 38. According to Simpson, however, nothing in the contest rules prohibited

  applications from individuals who had previously sued JREF. Id.

          On April 3, 2012, an individual from JREF sent Simpson an email with several questions

  about Simpson’s application and proposed testing protocol, including a request for Simpson to

  explain how his ability qualified as paranormal. Id. ¶ 40; id. at 21-23. Plaintiff responded, albeit

  briefly and uncooperatively, to each of JREF’s questions and further demanded that JREF respond


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  to him within a week. Id. at 22. According to Simpson, he never again heard from Defendants

  regarding the contest. Id. ¶ 41.

          Subsequently, Simpson filed his initial Complaint on May 2, 2012, D.E. 1, and amended it

  on June 5, 2012. D.E. 9. Simpson’s amended Complaint (“Complaint”) sets forth seven interrelated

  “Counts” for (1) fraud, (2) misrepresentation and breach of contract, (3) misfeasance, (4)

  malfeasance, (5) “action for damages,” (6) “action for specific performance,” and (7) “conspiracy

  section (1985 & 1986).” Id. ¶¶ 79-97. Simpson himself concedes that Counts Five and Six, for

  damages and specific performance, are not separate causes of action but are actually the remedies

  sought for the other counts. D.E. 27 at 15.

                                       II. LEGAL STANDARDS

          A pleading in a civil action must contain “a short and plain statement of the claim showing

  that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint “does not need

  detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic

  recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

  544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s

  pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

  accusation”).   Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual

  enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

  The Supreme Court has emphasized “[t]o survive a motion to dismiss a complaint must contain

  sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

  Id. (quoting Twombly, 550 U.S. at 570).

          When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s

  allegations as true and evaluate all plausible inferences derived from those facts in favor of the


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  plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe

  of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002).

  Upon engaging in this analysis, a court should deny a motion to dismiss where the pleading asserts

  non-conclusory, factual allegations, that, if true, would push the claim “across the line from

  conceivable to plausible.” Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570) (quotation

  marks omitted); Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting

  Twombly, 550 U.S. at 570) (explaining that allegations in a complaint “must . . . contain sufficient

  factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”). A claim

  is facially plausible when the plaintiff’s factual allegations “allow[] the court to draw the reasonable

  inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

          Rule 9(b), Fed. R. Civ. P., provides, “In alleging fraud or mistake, a party must state with

  particularity the circumstances constituting fraud or mistake.” The purpose of this particularity

  requirement is to “alert[] defendants to the precise misconduct with which they are charged and

  protect[] defendants against spurious charges of immoral and fraudulent behavior.” Ziemba v.

  Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (internal quotation marks omitted). Rule

  9's heightened pleading standard also applies to common-law negligent-misrepresentation claims.

  See Mirabilis Ventures, Inc. v. Berman (In re Mirabilis Ventures, Inc.), No. 6:09-cv-175-Orl-

  31DAB, 2010 WL 415315, at *3 (M.D. Fla. Jan. 27, 2010). Rule 9(b) may be satisfied if a plaintiff

  sets forth

                  (1) precisely what statements were made in what documents or oral
                  representations or what omissions were made, and (2) the time and
                  place of each statement and the person responsible for making (or, in
                  the case of omissions, not making) same, and (3) the content of such
                  statements and the manner in which they misled the plaintiff, and (4)
                  what the defendants “obtained as a consequence of the fraud.”

  Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997). These


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  factors are not exclusive, however, and a plaintiff may satisfy Rule 9(b)’s particularity requirements

  through alternative means. Id. (citing Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1512 (11th

  Cir. 1988).

         It is true that Rule 9's particularity requirements must be read in conjunction with Rule 8 “so

  as not to abrogate the concept of the notice pleading.” Degirmenci v. Sapphire-Fort Lauderdale,

  LLLP, 693 F. Supp. 2d 1325, 1344 (S.D. Fla. 2010) (quoting Durham, 847 F.2d at 1511).

  Nevertheless, because fair notice is the most basic consideration underlying Rule 9(b), a complaint

  must reasonably notify defendants of their purported role in the scheme and, in cases involving

  multiple defendants, the complaint must inform each defendant of his or her alleged role in the fraud.

  Brooks, 116 F.3d at 1381 (quoting Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 777-78

  (7th Cir. 1994)).

         Also relevant to the Court’s consideration is the fact that pleadings from pro se litigants are

  held to a less exacting standard than pleadings prepared by attorneys and are to be liberally

  construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Despite this

  leniency, though, pro se litigants are still required to conform to the Court’s rules, including the

  Federal Rules of Civil Procedure. See Castro v. Dir., Fed. Deposit Ins. Corp., 449 F. App’x 786,

  787 (11th Cir. 2011) (citing Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)).

                           III. DEFENDANTS’ MOTION TO DISMISS

  A. Count I: Fraud

         To state a claim for fraud under Florida law, a plaintiff must establish (1) a false statement

  regarding a material fact, (2) the statement maker’s knowledge that the representation is false, (3)

  the intent of the statement maker to induce reliance on the representation, and (4) injury to the party

  relying on the false statement. Tompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1315 (11th Cir.


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  2007) (citing Wadlington v. Cont’l Med. Servs., Inc., 907 So. 2d 631, 632 (Fla. 4th DCA 2005)).

  Generally, to be grounds for fraud, a false statement of fact must be of a past or existing fact, not a

  promise to do something in the future. Wadlington, 907 So. 2d at 632 (quoting Vance v. Indian

  Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1371 (Fla. 4th DCA 1981)). Only when a

  future promise is made by a statement maker who has no intention of performing it can a plaintiff

  maintain an action for fraud. Id. (citations omitted). As discussed above, Rule 9(b) requires a

  plaintiff to plead the elements of fraud with particularity and inform each defendant of his or her

  alleged role in the fraud. Brooks, 116 F.3d at 1381.

          At the outset, Simpson’s fraud claims fails because it does not describe the individual

  Defendants’ respective roles in the fraud. Each time Simpson mentions fraud in his Complaint, he

  attributes it to Defendants generally. See D.E. 9, ¶ 45 (“But when Plaintiff George R. Simpson filed

  an application for the $1 Million Challenge, he was treated in a fraudulent way.”), ¶ 50 (“Defendants

  have treated Plaintiff in a fraudulent manner and have misrepresented their offer.”), ¶ 81

  (“Defendants’ fraudulent actions . . . .”). Although Plaintiff is proceeding pro se, he still is required

  to adhere to Rule 9(b), and his Complaint as pled fails to give each Defendant proper notice of his

  or its involvement in the fraud.

          Even beyond this fatal procedural deficiency, Plaintiff fails to state a plausible claim for fraud

  in his Complaint. Plaintiff’s Complaint does not identify with precision any particular false

  statements of material fact, further running afoul of Rule 9. However, given Plaintiff’s pro se status,

  the Court has combed through the Complaint, as well as Plaintiff’s brief in response to Defendants’

  dismissal motion [D.E. 27], and has detected two possible bases for Plaintiff’s fraud claim: the

  contest offer itself, see D.E. 27 at 3, and Defendants’ failure to return Plaintiff’s communications,

  D.E. 9, ¶ 45.


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          The contest offer itself is merely a promise to do something in the future, i.e., develop a

  protocol and use that protocol to test an applicant’s paranormal claims. As a future promise, it may

  be the basis of a fraud claim only if, at the time the statement was made, Defendants had no intention

  of performing the promise. Wadlington, 907 So. 2d at 632. Plaintiff’s Complaint, however, belies

  any notion that Defendants had no intention of going forward with their contest when they

  introduced it. Simpson himself reveals that Grothe contacted him about deficiencies in his

  application and that he was permitted to correct these. D.E. 9, ¶¶ 30-31. Further communications

  from Defendants indicated they were giving Simpson’s application “serious thought” and were

  attempting to negotiate a testing protocol. Id. at 23. Even with the most lenient construction

  available, nothing in Plaintiff’s Complaint suggests that when Defendants made their contest offer

  they had no intention of following through on it. Accordingly, Plaintiff has not sufficiently pled that

  the contest offer itself is a false statement of material fact and, thus, cannot state a claim for fraud

  on this basis.

          Plaintiff also appears to suggest that the slow response from Defendants is a basis for fraud.

  See, e.g., id. ¶ 45 (“[Plaintiff] was treated in a fraudulent way. Defendants did not return calls or

  emails.”). But Plaintiff fails to point to any authority that would support construing Defendants’

  failure to respond as a false statement of material fact. To the extent Plaintiff asserts that

  Defendants’ statement that they needed “two or three weeks more to evaluate Plaintiff’s application”

  is a false statement of material fact, the Court does not agree. Plaintiff’s own Complaint avers that

  Defendants did continue to evaluate his application, as JREF subsequently sent Simpson an email

  with questions about the protocol on April 3, 2012, and Plaintiff has pled nothing to suggest a delay

  beyond three weeks was material in anyway.

          Because Plaintiff’s Complaint fails to satisfy the pleading requirements of Rule 9, and,


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  further, because the Complaint does not set forth a false statement of material fact, Defendants’

  motion to dismiss the fraud claim is granted.

  B. Count II

  1. Misrepresentation

         Florida law recognizes two types of “misrepresentation” claims: negligent misrepresentation

  and fraudulent misrepresentation. Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010). The elements

  of a negligent misrepresentation claim are

                 (1) a misrepresentation of material fact; 2) knowledge by the
                 representative as to the truth or falsity of the representation, or that
                 the representation was made under circumstances in which he ought
                 to have known of its falsity; (3) intent by the representator that the
                 representation induces another to act on it; and (4) injury to the
                 Plaintiff as a result of acting in justifiable reliance on the
                 misrepresentation.

  Waters v. Int'l Precious Metals Corp., 172 F.R.D. 479, 501 (S.D. Fla. 1996). The elements of

  fraudulent misrepresentation are nearly identical, except that the representing party must have

  knowledge of the falsity, and a plaintiff’s reliance need not be justifiable. Butler, 44 So. 3d at 105.

  Claims for both fraudulent misrepresentation and negligent misrepresentation must be pled to meet

  the same particularity standard required by Rule 9(b) for fraud claims. Linville v. Ginn Real Estate

  Co., 697 F. Supp. 2d 1302, 1306 (M.D. Fla. 2010); C.S.I.R. Enters., Inc. v. Sebrite Agency, Inc., 214

  F. Supp. 2d 1276, 1281 (M.D. Fla. 2002).

         Given the similarities between misrepresentation and fraud claims under Florida law, see

  Ostreyko v. B.C. Morton Org., Inc., 310 So. 2d 316, 318 (Fla. 3rd DCA 1975), the Court’s analysis

  of Plaintiff’s fraud claim applies here as well. Setting aside Plaintiff’s fatal Rule 9(b) pleading

  deficiencies, a negligent or fraudulent misrepresentation claim—just as a claim for fraud—requires

  a false statement of material fact. As described above, however, nothing alleged in Plaintiff’s


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  Complaint satisfies this element. Accordingly, Plaintiff’s misrepresentation claims must be dismissed.

  2. Breach of Contract

         It is a “well-settled rule” that a private contest represents an offer for a unilateral contract.

  United States v. Chandler, 376 F.3d 1303, 1308 (11th Cir. 2004). A unilateral contract may be

  accepted by performing all the terms and conditions of the contest. Id. at 1312. Under Florida law,

  although a unilateral contract may be accepted only upon complete performance, partial performance

  by the offeree renders the offer an irrevocable-option contract. See Ray-Hof Agencies, Inc. v.

  Petersen, 123 So. 2d 251, 253-54 (Fla. 1960); see also Restatement (Second) of Contracts § 45

  (1981). A claim for breach of contract, including an option contract, must allege the existence of,

  among other things, a valid contract. Trowell v. S. Fin. Grp., Inc., 315 F. App’x 163, 165 (11th Cir.

  2008) (citing Beck v. Lazard Freres & Co., 175 F.3d 913, 914 (11th Cir. 1999)).

         Defendants’ contest represents an offer for a unilateral contract, as it invites applicants to

  perform by demonstrating a “psychic, supernatural, or paranormal ability” and, in exchange, receive

  a reward if such an ability is demonstrated under “satisfactory observation.” D.E. 9, ¶ 14.

  Accordingly, tender of a valid application would seemingly create an irrevocable-option contract,

  requiring Defendants to negotiate and proceed with a protocol for “satisfactory observation.” See

  Restatement (Second) of Contracts § 45(d). Plaintiff’s Complaint falls short of establishing an

  option contract, however, because it fails to allege that Plaintiff submitted a valid application.

         While Plaintiff did indeed submit an application to Defendants, the only ability Plaintiff

  claims is an ability to decipher a code. D.E. 9, ¶ 20; D.E. 9 at 20. Similarly, Plaintiff’s proposed

  testing protocol involves only decryption of this code—or more specifically, use of randomly

  generated key elements, which, unsurprisingly, Plaintiff hypothesizes will not work to reveal hidden

  words in the English language. D.E. 9 at 20. Whatever is Simpson’s inspiration for piecing together



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   this code—and the Court need not divine the nature of that inspiration—the ability Simpson seeks

   to demonstrate is no more paranormal than the ability of cryptologists to decrypt military codes or

   linguists to learn and translate a previously unknown language.

          Plaintiff’s statement that each translated word is a “miracle” and, therefore, “proof of the

   ‘paranormal,’” is merely conclusory,1 as is Plaintiff’s response to Defendants’ email inquiry,

   summarily declaring that “[t]he translation system is paranormal.” D.E. 9 at 20, 22. Indeed, Plaintiff

   himself exposes the non-paranormal nature of his ability when he asserts that he “discovered” the

   code and that it has taken him over twenty-five years of “trial and error” to develop a working

   knowledge of the decoding rules. Id. ¶ 60; id. at 22. Because Plaintiff has not submitted any

   psychic, supernatural, or paranormal ability for testing as required by the contest terms, his contest

   application is invalid, and thus he cannot state a claim for breach of any option contract that would

   have been created by partial performance of Defendants’ contest offer.

   C. Counts III and IV - Misfeasance and Malfeasance

          Plaintiff’s Complaint states separate claims for “misfeasance” and “malfeasance” against

   Defendants. D.E. 9, ¶¶ 85-90. Although each incorporates by reference all preceding portions of

   the Complaint, Plaintiff’s misfeasance claim seems to focus on Defendants’ mismanagement of the

   contest, id. ¶ 86, while his malfeasance claim seems to charge Defendants with deliberately

   breaching their contract with Plaintiff, id. ¶ 89.

          While Defendants are correct that the terms “malfeasance” and “misfeasance” are often used



           1
              Moreover, to the extent that Plaintiff’s claims can be construed to suggest that
   extraterrestrials visited him—even “subliminally”—without more than Plaintiff’s conclusory
   statements to this effect, they appear to fall into the category of allegations described by Justice
   Souter as “sufficiently fantastic to defy reality as we know it: claims about little green men, or the
   plaintiff’s recent trip to Pluto, or experiences of time travel.” Iqbal, 556 U.S. at 696 (Souter, J.,
   dissenting).

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   to refer to wrongful conduct by public officials, the terms can also be used to describe wrongful

   conduct more generally, including a manner of breaching a contract that rises beyond contract law

   to tort. See, e.g., Splitt v. Deltona Corp., 662 F.2d 1142, 1145-46 (5th Cir. Unit B 1981) (discussing

   the distinction between nonfeasance, which is remedied only by contract law, and misfeasance,

   which may be remedied in tort even when a contract exists); Atchley v. First Union Bank of Fla., 576

   So. 2d 340, 344 (Fla. 5th DCA 1991) (describing liability for misfeasance in the context of

   independent contractors). Thus, it cannot fairly be said that Plaintiff’s Complaint is asking the Court

   to boldly go where no Court has gone before. Accordingly, the Court will construe Plaintiff’s

   misfeasance and malfeasance claims as stating a claim for tortious breach of contract.

          Florida law recognizes a claim for “tortious breach of contract,” but only when it can be

   shown that the breaching party owed the non-breaching party a statutory or common-law duty. See

   Burger King Corp. v. Weaver, 798 F. Supp. 684, 690 (S.D. Fla. 1992) (citing Cardenas v. Miami

   Dade Yellow Cab Co., 538 So. 2d 491, 496 n.4 (Fla. 3rd DCA 1989)). Further, when a contract

   exists, a tort action will lie for only tortious acts that are independent from those acts that breached

   the contract. Indemn. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 536-37 (Fla. 2004);

   HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996).

          Plaintiff’s Complaint does not allege any set of facts that sets forth a tort claim independent

   of the alleged breach of contract. Although Plaintiff attempts to allege only one tort—fraud—that

   is independent from the breach of contract, as discussed above, Plaintiff’s Complaint does not

   successfully state a claim for fraud. And while Plaintiff makes conclusory assertions that Defendants

   “damaged Plaintiff’s reputation and his financial well being,” D.E. 9, ¶ 87, Plaintiff provides no

   factual support indicating that he has suffered any reputational harm, and the only financial interest

   implicated is the missed potential to win the contest due to Defendants’ alleged breach of the contest


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   terms. Because the Complaint does not successfully allege a tort claim independent of the contest

   contract, Plaintiff’s claims for misfeasance and malfeasance, as construed, must be dismissed.

   D. Counts V and VI - Damages and Specific Performance

          As previously discussed, both parties correctly concede that Plaintiff does not state separate

   causes of action for damages or specific performance. D.E. 13 at 14-15; D.E. 27 at 15. As a result,

   these individual counts must be dismissed. Further, because the Court dismisses all of Plaintiff’s

   other causes of action, his claims for remedies are moot, anyway.

   E. Count VII - Civil Conspiracy

          The Court construes Count VII of Simpson’s Complaint as alleging a cause of action under

   42 U.S.C. §§ 1985(3) and 1986.2 To plead a cause of action under Section 1985(3), a Plaintiff must

   establish (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person

   or class of persons of the equal protection of the laws, or of equal privileges and immunities under

   the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to a person or property or a

   deprivation of any right or privilege of a citizen of the United States. Trawinski v. United Techs.,

   313 F.3d 1295, 1299 (11th Cir. 2002).

          Because Section 1985(3) was not designed to create a “general federal tort law,” a claim

   under 1985(3) must also assert “invidious discriminatory intent as well as the violation of a serious

   constitutional right protected not just from official, but also from private encroachment.” Id. (citing

   Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68, 274 (1993); Griffin v.

   Breckenridge, 403 U.S. 88, 102 (1971)). The list of rights protected from both official and private



          2
            Although the Complaint does not specify which provision of 42 U.S.C. § 1985 applies,
   Sections 1985(1) (dealing with federal officers) and 1985(2) (dealing with obstruction of justice and
   witness intimidation) are clearly inapplicable to Plaintiff’s Complaint. Moreover, Plaintiff does not
   dispute this in his response to Defendants’ Motion to Dismiss.

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   encroachment is significant but exceedingly small, and does not include a right to be free from,

   among other things, misrepresentations in business or contract breaches. See Trawinski, 313 F.3d

   at 1299; see also Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir. 2010) (holding that

   conspiracies to violate rights protected by 42 U.S.C. § 1981, such as contract rights, are insufficient

   to form the basis of a Section 1985(3) claim); McLellan v. Miss. Power & Light Co., 545 F.2d 919,

   931 (5th Cir. 1977) (opining that Section 1985(3) likely was not intended to redress private contract

   rights).

              Plaintiff’s civil conspiracy count contends that Defendants were parties to a “vicious

   conspiracy” to avoid their responsibilities to Plaintiff under the contest. D.E. 9, ¶ 97. However, the

   only right of which Defendants have supposedly deprived Plaintiff is the right to compete in and win

   a contest. Id. ¶ 9; D.E. 27 at 17 (“There can be no question, Defendants have conspired to keep

   Plaintiff from winning the $1 Million Challenge.”). At most, Plaintiff alleges a conspiracy to breach

   a contract, but as discussed above, this is an insufficient basis to sustain a claim under Section

   1985(3).3

              Relatedly, establishing a claim under 42 U.S.C. § 1986 requires the existence of a violation

   of Section 1985. Park v. City of Atlanta, 120 F.3d 1157, 1160 (11th Cir. 1997). Because Plaintiff

   has not successfully pled the existence of a Section 1985(3) conspiracy, he has no cause of action

   under Section 1986, and, therefore, Count VII of Plaintiff’s Complaint must be dismissed.

                            IV. DEFENDANTS’ MOTION FOR SANCTIONS

              Defendants have separately filed a Motion for Sanctions pursuant to Rule 11, Fed. R. Civ.



              3
           Simpson also appears to assert in his response brief that not only have Defendants conspired
   to prevent him from winning the contest, but that they also are conspiring against God. D.E. 27 at
   17. To the extent Plaintiff claims that Defendants have conspired to deprive God of any right, the
   Court concludes that Plaintiff lacks standing to bring a Section 1985(3) on God’s behalf.

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   P. [D.E.34]. Defendants support their motion by calling Plaintiff’s lawsuit “absurd,” “groundless,”

   and “frivolous.” D.E. 34 at 2. Specifically, Defendants assert that the premise of Simpson’s

   claim—communication with extraterrestrials—is “factually implausible and unsupported by any

   evidence.” Id. at 3. Further, Defendants claim that Simpson has filed “other baseless claims

   throughout the country” but specifically cite only one other case brought over five years ago in the

   Southern District of Florida that was voluntarily dismissed by Simpson approximately two months

   after being filed.4 Id. at 4.

           Under Rule 11, Fed. R. Civ. P., by “signing a pleading in a federal court, an attorney [or

   party] certifies that he or she has conducted a reasonable inquiry and that the pleading is well

   grounded in fact, legally tenable, and ‘is not presented for any improper purpose.’” Baker v.

   Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (quoting Fed. R. Civ. P. 11). Rule 11 authorizes a

   court to impose sanctions where a party has signed and filed a pleading that “(1) has no reasonable

   factual basis; (2) is based on a legal theory that has no reasonable chance of success and that cannot

   be advanced as a reasonable argument to change existing law; and (3) is filed in bad faith for an

   improper purpose.” Id. “The objective standard for testing conduct under Rule 11 is ‘reasonable

   under the circumstances’ and ‘what was reasonable to believe at the time’ the pleading was

   submitted.” Id.

           Upon consideration, the Court declines to exercise its discretion to impose sanctions on

   Plaintiff. Defendants have not made any showing that Plaintiff proceeded in this case in bad faith

   or for an improper purpose. Further, while the Court can sanction vexatious litigants, the Court fails

   to see how a single close encounter with Plaintiff in federal court more than five years ago, which

   was quickly and voluntarily dismissed by Plaintiff, is particularly vexing. For all of these reasons,


           4
               Simpson v. Zwinge, No. 1:07-cv-22951-HUCK (S.D. Fla. Nov. 14, 2007).

                                                    14
Case 0:12-cv-60817-RSR Document 36 Entered on FLSD Docket 01/31/2013 Page 15 of 15



   the Court denies Defendants’ Motion for Sanctions.

                                         V. CONCLUSION

          For the above reasons, it is ORDERED AND ADJUDGED that Defendants’ Motion to

   Dismiss Amended Complaint [D.E. 13] is GRANTED. Plaintiff’s Amended Complaint is

   DISMISSED WITH PREJUDICE. It is further ORDERED that Defendants’ Motion for

   Sanctions [D.E. 34] is DENIED. To the extent not otherwise disposed of, all other pending motions

   are DENIED AS MOOT. The Clerk is directed to CLOSE this case.

          DONE and ORDERED at Fort Lauderdale, Florida, this 31st day of January 2013.



                                               __________________________________
                                               ROBIN S. ROSENBAUM
                                               UNITED STATES DISTRICT JUDGE

   Copies to:

   The Honorable Barry S. Seltzer

   Counsel of record

   George R. Simpson, pro se
   P.O. Box 775
   Hampton Bays, NY 11946
   Via U.S. Mail




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