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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14741
Non-Argument Calendar
________________________
D.C. Docket No. 9:19-cv-81179-RAR
ILLOOMINATE MEDIA, INC.,
LAURA LOOMER,
A Florida Individual,
Plaintiffs-Appellants,
versus
CAIR FLORIDA, INC.,
A Florida Corporation,
CAIR FOUNDATION,
A District of Columbia Corporation,
TWITTER INC.,
A Delaware Corporation,
JOHN DOES 1-5,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 29, 2020)
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Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
I.
Twitter banned Laura Loomer, a self-described political activist and
journalist, from using its platform in 2018. It claimed that one of her tweets
violated its Terms of Service; Loomer tells a different story. She thinks that CAIR
Foundation, a self-described Muslim civil rights group, conspired with Twitter and
CAIR-Florida, one of CAIR Foundation’s independent chapters, to ban her
account. According to Loomer, the trio targeted her because they disagree with her
political views.
Loomer and her company, Illoominate Media, sued CAIR Foundation,
CAIR-Florida, John Does 1-5, and Twitter in Florida state court for violations of
state law—though they never served Twitter or the John Does and eventually
dismissed Twitter from the case. Most of their claims center on CAIR
Foundation’s actions; they think that CAIR Foundation and Twitter have a “special
relationship” such that Twitter gives CAIR Foundation a “role in deciding what
ideas and voices Twitter will silence.” According to the plaintiffs, CAIR-
Foundation “acted in concert” with CAIR-Florida to instruct Twitter to ban
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Loomer’s account. Their amended complaint references CAIR-Florida only a
handful of times.
CAIR Foundation removed the case to federal court on the basis of diversity
jurisdiction. Though it acknowledged that CAIR-Florida posed a barrier to
complete diversity because it was a citizen of the same state as the plaintiffs, it
argued that CAIR-Florida was fraudulently joined to defeat diversity jurisdiction
and should not be considered when determining the court’s jurisdiction.
The district court agreed. It found that there was no possibility that the
plaintiffs could prove a cause of action against CAIR-Florida—Loomer and
Illoominate did not explain how CAIR-Florida conspired with CAIR Foundation or
how it was involved in triggering Twitter’s ban. The district court accordingly
denied the plaintiffs’ motion to remand and dismissed CAIR-Florida from the case.
It then dismissed the plaintiffs’ one remaining claim—tortious interference
with a business relationship. It found that the plaintiffs could not identify a
protected business relationship that CAIR Foundation interfered with and,
regardless, Twitter’s decision to ban Loomer was protected under Section 230 of
the Communications Decency Act. If Twitter could not be held liable for banning
Loomer’s account, neither could CAIR Foundation.
Loomer and Illoominate appeal the district court’s denial of their motion to
remand and dismissal of their tortious interference claim. We affirm on both
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fronts—the plaintiffs fraudulently joined CAIR-Florida in order to defeat diversity
jurisdiction, and they failed to show a business relationship protected under Florida
law to make out a claim for tortious interference against CAIR Foundation.
II.
The existence of federal subject matter jurisdiction is a question of law that
we review de novo. Triggs v. John Crump Toyota, Inc.,
154 F.3d 1284, 1287 (11th
Cir. 1998). A civil case filed in state court may be removed by the defendant to
federal court if the case could have originally been brought in federal court based
on diversity of citizenship.
28 U.S.C. § 1441(a). The parties must be completely
diverse; each plaintiff must be diverse from each defendant. Triggs,
154 F.3d at
1287. An action removed based on diversity jurisdiction “must be remanded to
state court if there is not complete diversity between the parties, or one of the
defendants is a citizen of the state in which the suit is filed.” Stillwell v. Allstate
Ins. Co.,
663 F.3d 1329, 1332 (11th Cir. 2011) (citation omitted).
But there’s a catch—if the plaintiff fraudulently joins a non-diverse
defendant to defeat complete diversity, then that non-diverse defendant is not
considered for purposes of the court’s jurisdiction. Triggs,
154 F.3d at 1287. To
establish fraudulent joinder, the removing party must prove either that “there is no
possibility that the plaintiff can prove a cause of action against” the non-diverse
defendant, or that “there is outright fraud in the plaintiff’s pleading of jurisdictional
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facts.”
Id. Courts must evaluate factual allegations in the light most favorable to
the plaintiff when considering fraudulent joinder. Stillwell, 663 F.3d at 1333.
Turning to the facts of this case, the parties do not dispute that the district
court only had diversity jurisdiction over the removed case if CAIR-Florida was
fraudulently joined. The first question for us, therefore, is whether there was any
possibility that the plaintiffs could prove a cause of action against CAIR-Florida
for conspiring to ban Loomer’s account. Triggs,
154 F.3d at 1287.
For starters, Loomer and Illoominate offer nothing beyond vague
speculation to indicate that CAIR-Florida was involved in the alleged conspiracy
or acted tortiously to interfere with Loomer and Illoominate’s business
relationships. Though their amended complaint is rife with accusations, references
to CAIR-Florida are few and far between. And none explain how CAIR-Florida
instructed CAIR Foundation or Twitter to ban Loomer’s account. For example, the
plaintiffs claim that CAIR-Florida prevented Loomer from attending a criminal
trial in 2018—but they don’t bring causes of action based on that incident. Their
case is about the ban of Loomer’s Twitter account. And a run-in with CAIR-
Florida outside a courthouse does not show that CAIR-Florida conspired with
CAIR Foundation and Twitter to ban Loomer’s account.
The plaintiffs also allege that Loomer is a “thorn in the side” of CAIR-
Florida, and that CAIR-Florida “acted in concert” with CAIR Foundation and
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Twitter to ban her account. But those allegations are speculative, and, without
more, conclusory. Whether an individual acted in concert with another is a legal
conclusion; the plaintiffs needed to also provide factual allegations to show that it
was possible to make out their claims. That link is missing here—Loomer and
Illoominate admit they cannot provide any facts showing that CAIR-Florida was
involved in the ban of Loomer’s account, and instead offer only speculation.
Simply put, they give us no reason to think that a court would find CAIR-Florida
liable for any of the wrongful acts they allege.
Id.
The plaintiffs think the district court applied the wrong standard, but that’s
just not so. The district court properly applied our test from Triggs v. John Crump
Toyota, Inc. and considered whether the plaintiffs made out an arguable claim
against CAIR-Florida.
Id. And contrary to what the plaintiffs might think, none of
the allegations from their amended complaint support an inference that CAIR-
Florida acted in concert with CAIR Foundation and Twitter to ban Loomer’s
account.
The defendants, for their part, provided several sworn statements to buttress
their claims that CAIR-Florida was fraudulently joined. In one, Nathan Bernard
explained that this story originated as a prank. According to Bernard, he and Chris
Gillen decided to convince Loomer that CAIR Foundation was the reason Twitter
banned her account. Bernard stated that CAIR-Florida was not involved in their
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scheme and that they never mentioned CAIR-Florida to Loomer during the entirety
of the prank. Other affidavits state that, prior to this lawsuit, no one at CAIR-
Florida had spoken with CAIR Foundation about Laura Loomer or Illoominate
Media and no one from CAIR-Florida had contacted Twitter about banning her
account.
The plaintiffs don’t dispute these affidavits. They instead fault the district
court for considering the affidavits at all. But we have already held that the
process for resolving a claim of fraudulent joinder is similar to the one used for a
motion for summary judgment—a court can consider the plaintiff’s pleadings and
any affidavits or transcripts submitted by the parties when determining if a party
was fraudulently joined. Crowe v. Coleman,
113 F.3d 1536, 1538 (11th Cir.
1997). And where the plaintiffs do not dispute the defendant’s affidavits, there is
no question of fact for the court to resolve in the plaintiffs’ favor. Legg v. Wyeth,
428 F.3d 1317, 1323 (11th Cir. 2005). We have no reason to question these
undisputed statements that CAIR-Florida was not involved in this case.
Taking a different tack, the plaintiffs claim that any affidavits the district
court considers must be submitted with the notice of removal. But that too is
wrong; no rule requires a district court to consider only those affidavits filed with
the notice of removal. In fact, it is error for a court to resolve the question of
fraudulent joinder “by refusing to consider the defendants’ submissions.”
Id.
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Plaintiffs also seem to think that even if the district court was correct to find
fraudulent joinder, it could not dismiss the claims against CAIR-Florida with
prejudice because it lacked subject matter jurisdiction to make a decision on the
merits. But that argument was not raised below and is forfeited on appeal. Mills v.
Singletary,
63 F.3d 999, 1008 n.11 (11th Cir. 1995). In any event, the district
court’s order did not require it to have jurisdiction over CAIR-Florida; this was a
procedural dismissal designed to prevent the plaintiffs from again bringing claims
against CAIR-Florida in this case. See Kent v. Sutker,
40 So. 2d 145, 147 (Fla.
1949) (an adjudication on technical grounds, where the merits do not come into
question, is limited to the point actually decided).
To sum up, Plaintiffs offered nothing beyond vague speculation that CAIR-
Florida was involved in the plan to ban Loomer from Twitter and did not rebut
CAIR Foundation’s contentions of fraudulent joinder. Because there is no
possibility that the plaintiffs could prove a cause of action against CAIR-Florida,
its joinder was fraudulent.
III.
We review dismissal for failure to state a claim on which relief can be
granted de novo. Blevins v. Aksut,
849 F.3d 1016, 1018–19 (11th Cir. 2017). A
complaint must contain a short and plain statement of the facts showing that the
plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2).
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To state a claim under Florida law for tortious interference with a business
relationship, the plaintiff must demonstrate 1) the existence of a business
relationship under which the plaintiff has legal rights; 2) knowledge of that
relationship by the defendant; 3) an intentional and unjustified interference with
the relationship; and 4) damage to the plaintiff as a result. Ethan Allen, Inc. v.
Georgetown Manor, Inc.,
647 So. 2d 812, 814 (Fla. 1994).
As for the first prong, a plaintiff may bring a cause of action alleging
interference with present or prospective customers, but no cause of action exists for
interference with a relationship to the community at large.
Id. at 815. There must
be “an actual and identifiable understanding or agreement which in all probability
would have been completed if the defendant had not interfered” to make out this
claim. Id.; see also Ferguson Transp., Inc. v. North American Van Lines, Inc.,
687
So. 2d 821, 822 (Fla. 1996).
Loomer and Illoominate think that CAIR Foundation interfered with two
business relationships: Loomer’s relationship with her Twitter followers and
Loomer’s relationship with Twitter itself. But, for reasons described below,
neither relationship is protected by a tortious interference cause of action.
To begin, Loomer’s relationship with her Twitter followers is a relationship
with the public at large. The plaintiffs don’t allege that CAIR Foundation
interfered with specific agreements with identifiable customers or donors; instead,
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they allege that it interfered with Loomer’s relationship with the general Twitter
community. But no matter how economically beneficial that relationship might be,
no cause of action exists for interference with Loomer’s relationship with the
general public. Ethan Allen,
647 So. 2d at 815.
And the plaintiffs’ claim that CAIR Foundation interfered with Loomer’s
relationship with Twitter gets them no further. In order to show that CAIR
Foundation’s supposed instruction to ban Loomer constituted tortious interference
with a business relationship, the plaintiffs needed to show that Loomer had
“existing or prospective legal or contractual rights” in the use of her Twitter
account.
Id. at 814 (quoting Register v. Pierce,
530 So. 2d 990, 993 (Fla. Dist. Ct.
App. 1988)). But the plaintiffs’ amended complaint is devoid of allegations
suggesting that Loomer had legal or contractual rights in her Twitter account. In
fact, Twitter’s Terms of Service, which the plaintiffs do not dispute, allow Twitter
to ban Loomer from its platform for any reason at all. So even if CAIR Foundation
instructed Twitter to ban her account, it did not tortiously interfere with a business
relationship because Loomer did not have legal or contractual rights in the
continued use of her account.
Id.
Loomer and Illoominate argue to no avail that under California law—which
governs Twitter’s Terms of Service—contracts must be “mutual” to be
enforceable, and it would not be “mutual” for Twitter to have the right to cancel
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Loomer’s account at will. But just because a contract is terminable at will does not
mean it is not “mutual.” See Consolidated Theaters, Inc. v. Theatrical Stage Emp.
Union, Local 16,
447 P.2d 325, 336 (Cal. 1968). And either way, our response to
this argument won’t change the fact that the plaintiffs failed to allege an
interference with actual legal or contractual rights—which they were required to do
to make out this claim. Ethan Allen,
647 So. 2d at 814.
Because Loomer and Illoominate failed to show interference with business
relationships protected by Florida law, the district court was correct to dismiss their
tortious interference claim. And because they could not make out this claim, we
need not consider whether it was preempted by Section 230 of the
Communications Decency Act.
IV.
That brings us to the plaintiffs’ final argument. They say that even if all this
is true, the district court erred in not giving them leave to amend their complaint.
But giving leave to amend would have been futile—neither the fraudulent joinder
of CAIR-Florida nor the lack of a protectable business relationship could be cured.
Hall v. United Ins. Co. of America,
367 F.3d 1255, 1263 (11th Cir. 2004).
Plaintiffs already admitted that they do not know of any underlying facts that
would make CAIR-Florida liable for Twitter’s ban of Loomer’s account. And no
amendment can change the nature of Loomer’s relationship with Twitter or with
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her followers. The district court did not need to grant leave to amend where such
leave would be futile.
Id.
In sum, the district court had jurisdiction to hear this case, and it correctly
found that the plaintiffs had no claim for tortious interference with a business
relationship under Florida law. Accordingly, the judgment of the district court is
AFFIRMED.
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