Accelerant Specialty Insurance Company v. Tran

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ACCELERANT SPECIALTY

INSURANCE COMPANY,

Plaintiff,

v. Case No: 6:23-cv-134-PGB-LHP

THERESA TRAN, CHICAGO

AQUALEISURE, LLC and

JOSEPH NEVERAUSKAS,

Defendants.

/

ORDER

This cause comes before the Court on:

1. The Court’s Order to Show Cause (Doc. 60) and Plaintiff Accelerant

Specialty Insurance Company’s (“Plaintiff”) Response (Doc. 61);

2. Defendant Joseph Neverauskas’s (“Neverausakas”) Motion to

Dismiss Crossclaims (Doc. 56) and Defendant/Cross-Plaintiff Theresa

Tran’s (“Tran”) Response (Doc. 59); and

3. Neverauskas’s Motion to Dismiss Plaintiff’s Amended Complaint

(Doc. 46) and Plaintiff’s Response (Doc. 57).

Upon due consideration, the Court finds that venue is improper in the

Middle District of Florida and Plaintiff did not join necessary parties over whom

the Court lacks personal jurisdiction, and thus, the entire action should be

dismissed.

I. BACKGROUND

On August 13, 2022, a chartered mini-yacht insured by Plaintiff—sailing on

a portion of Lake Michigan near Chicago—backed over bathers Marija Velkova,

Lana Batochir, and Jacob Houle, causing serious injuries. (Doc. 21, ¶¶ 13, 16–20;

Doc. 46, p. 2). Captain Neverauskas was piloting the boat, which is owned and

managed by Chicago AquaLeisure and Tran. (Doc. 21, ¶ 17; Doc. 21-1). Velkova,

Batochir, and Houle (collectively, the “Injured Bathers”) sued all three of the

aforementioned parties for their injuries. (Docs. 46-1, 46-2, 46-3). Accordingly, all

three Defendants seek coverage under the boat’s insurance policy—an eroding

policy that provides $75,000.00 in hull coverage and a $1,000,000.00 combined

single limit for third-party liability coverage, from which funds to defend a claim

are deducted. (Doc. 21, ¶¶ 12, 21; Doc. 21-1.)

Looking to avoid coverage, Plaintiff sued Defendants seeking declaratory

judgment that the insurance policy is void. (Doc. 21). As grounds, Plaintiff alleges

Defendants breached the policy’s Fire Suppression Warranty (Count I), Survey

Compliance Warranty (Count II), the doctrine of uberrimae fidei (Count III), and

General Condition against misrepresenting material facts (Count IV). (Id. at ¶¶ 25–

70). Plaintiff additionally alleges Neverauskas provided late notice of the loss,

presenting a complete defense to coverage (Count V). (Id. at ¶¶ 71–77). Chicago

AquaLeisure and Tran answered Plaintiff’s Amended Complaint with

counterclaims for breach of contract and declaratory judgment, contesting venue.

(Doc. 33, pp. 12–18; Doc. 34, pp. 11–18). Both additionally filed crossclaims for

negligence against Neverauskas. (Doc. 33, pp. 19–23; Doc. 34, pp. 19–23).

Neverauskas moved to dismiss Plaintiff’s Amended Complaint under

Federal Rule of Civil Procedure 12(b)(7) for failure to join the Injured Bathers, who

are allegedly indispensable parties. (Doc. 46). Plaintiff replied that the Injured

Bathers are not required parties because they lack a sufficient interest in the

litigation. (Doc. 57). Neverauskas also moved to dismiss Tran’s crossclaim. (Doc.

56). Tran responded by requesting the Court transfer the crossclaim to Illinois as

a more convenient venue under 28 U.S.C. § 1404(a). (Doc. 59). The Court

additionally ordered Plaintiff to show cause why venue in the Middle District of

Florida is proper. (Doc. 60). Plaintiff replied that it is enough that Defendants’

insurance agent resides in Florida and, alternatively, Defendants waived improper

venue in various ways. (Doc. 61). With briefing complete, the matters are ripe.

II. Analysis

A. Improper Venue

The Court raises the issue of venue sua sponte as to Plaintiff’s Amended

Complaint. (Doc. 60). Objecting to defective venue is a defendant’s procedural

right that may be waived or, in the absence of waiver, raised by the Court on its

own motion. Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1258

(11th Cir. 1988). Venue is proper when a case was filed in either:

(1) a judicial district in which any defendant resides, if all

defendants are residents of the State in which the district is

located; (2) a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is

situated; or (3) if there is no district in which an action may

otherwise be brought as provided in this section, any judicial

district in which any defendant is subject to the court’s

personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). If it was not, “then venue is improper, and the case must be

dismissed or transferred under 28 U.S.C. § 1406(a).” Atl. Marine Const. Co., Inc.

v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 56 (2013). Venue must be

established over each defendant. Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d

1352, 1355 (11th Cir. 1990). Plaintiff bears “the burden of showing that venue in its

chosen forum is proper.” Maresca v. Marela, LLC, No. 6:09-CV-1386-ORL-

19DAB, 2010 WL 745755, at *1 (M.D. Fla. Feb. 26, 2010).

In this case, Plaintiff failed to meet that burden. Venue in the Middle District

of Florida does not meet the statutory requirements in § 1391(b)(2)—the only

provision under which venue would be proper here since Defendants reside in

Illinois. For purposes of § 1391(b)(2), the Eleventh Circuit holds “only those

locations hosting a ‘substantial part’ of the events” with “a close nexus to the

wrong” are to be considered. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th

Cir. 2003). The Court ordered Plaintiff to identify what “substantial part of the

events or omissions giving rise to the claim occurred” in Florida. (Doc. 60, p. 3). In

response, Plaintiff states only the insurance policy in question “was negotiated and

delivered to the insured’s agent in Florida,” but nothing else. (Doc. 61, p. 3).

According to the Amended Complaint, the cause of action exclusively concerns

events that occurred in Illinois, as well as a boat harbored there. (Doc. 21, ¶¶ 33–

41, 48–51, 59, 66). The residence of an insurance agent—who had nothing to do

with the boating accident or alleged policy breaches—does not suffice to prove the

statutory venue requirements have been met.

That being the case, Plaintiff next argues that venue is not defective because

Defendants have waived their objections to it. See Manley v. Engram, 755 F.2d

1463, 1468 (11th Cir. 1985) (holding waiver cures any defect in venue). A district

court may not step in sua sponte and dismiss an action under § 1406(a) where a

defendant has waived venue. Aero Techs., LLC v. Lockton Cos. Intern. Ltd., 406 F.

App’x 440, 441 (11th Cir. 2010). Waiver “is the intentional relinquishment or

abandonment of a known right” determined by “the actions of the person who held

the right.” Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1713 (2022) (internal

quotation omitted). Parties waive objections to venue by failing to assert them in

the first motion made under Federal Rule of Civil Procedure 12 or a responsive

pleading. See FED. R. CIV. P. 12(h). Venue may also be waived by contract. In re

Fireman’s Fund Ins. Cos., Inc., 588 F.2d 93, 95 (5th Cir. 1979).1

Plaintiff first asserts that Defendants waived any objections to venue by

assenting to the forum-selection clause in the insurance policy. The clause reads:

“It is also hereby agreed that any dispute arising hereunder

shall be subject to the exclusive jurisdiction of the Federal

courts of the United States of America, in particular, the

Federal District court within which You the Assured resides or

1 The Eleventh Circuit holds cases handed down by the Fifth Circuit prior to October 1, 1981

shall constitute binding precedent unless overruled en banc. Bonner v. City of Prichard, 661

F.2d 1206, 1207 (11th Cir.1981) (en banc).

the Federal District court within which your insurance agent

resides.”

(Doc. 21-1, p. 18). “Forum selection clauses are interpreted according to ordinary

contract principles” and are frequently categorized as either permissive or

mandatory, or a hybrid clause allowing a permissive choice of venue in bringing

suit coupled with a provision binding those sued to the forum in which the action

is brought. Ocwen Orlando Holdings Corp. v. Harvard Prop. Tr., LLC, 526 F.3d

1379, 1381 (11th Cir. 2008). Forum-selection clauses intending to waive venue

usually contain provisions expressly prohibiting any objection to it. E.g., AFC

Franchising, LLC v. Purugganan, 43 F.4th 1285, 1296 (11th Cir. 2022) (finding

waiver where forum-selection clause required defendant to “waive any objection

[he] might have to either the jurisdiction of or venue in those courts”).

In this case, the forum selection clause grants a choice of forum exclusively

in federal court in either the district where Defendants reside, or their insurance

agent resides. (Doc. 21-1, p. 18). But the clause does not contain an explicit waiver

of Defendants’ ability to object to venue in the selected forum—or even mention

venue at all. (Id.) Contractual consent to jurisdiction in multiple fora does not

automatically bind a defendant to litigating in the forum where the action is

brought. See Glob. Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1272

(11th Cir. 2004) (finding a clause placing venue in a specific county did not

automatically restrict litigation to the state court venue where the action was

brought); cf. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939)

(noting the historic distinction between jurisdiction and venue); Garay v. BRK

Electronics, 755 F. Supp. 1010, 1011 (M.D. Fla. 1991) (noting “a plaintiff’s choice of

forum is entitled to less consideration where the operative facts underlying the

cause of action did not occur within the chosen forum”). Faced with a clause

allowing suit in one of two fora, the Court will not read into the insurance policy a

provision requiring absolute submission by Defendants to whichever forum the

suing party chooses—which Plaintiff, the drafter of the agreement, chose not to

include. See Citro Fla., Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir. 1985)

(unclear contract provision is to be construed against the drafter). If Plaintiff

intended to permit suit only in the forum in which the action was brought, “it could

easily have stated that intention precisely.” Glob. Satellite, 378 F.3d at 1274.

Next, Plaintiff advances, baselessly, that Tran and Chicago AquaLeisure

waived venue by failing to file Rule 12(b)(3) motions. (Doc. 61, p. 5). Both Tran and

Chicago AquaLeisure asserted an improper venue defense in their answers without

filing any Rule 12 motions. (Docs. 33, 34). A party waives improper venue by filing

a pre-answer Rule 12 motion or a responsive pleading omitting the defense.

Lipofsky, 861 F.2d at 1258; Aero Techs., 406 F. App’x at 441 (citing FED. R. CIV. P.

12(g)(2), (h)(1)(A)). “Including [the defense] in a responsive pleading” without

filing a Rule 12 motion clearly does not waive venue. FED. R. CIV. P. 12(h)(1)(B)(ii).

However, as Plaintiff observes, Neverauskas filed a pre-answer Rule 12(b)(7)

motion without raising improper venue (Doc. 46) and so waived the defense. Id.

For the foregoing reasons, venue in the Middle District of Florida is

improper as to Tran and Chicago AquaLeisure and so the action against them must

be dismissed or, if in the interest of justice, transferred. See Atl. Marine, 571 U.S.

at 56 (citing 28 U.S.C. § 1406(a)). Because no party has demonstrated a clear

preference for transfer over dismissal of this proceeding and this Court sees no

reason that the claims cannot be promptly refiled in the proper venue, the Court

declines to exercise its discretion to transfer this case. See Rolland Studios, Inc. v.

E-Max Grp., Inc., No. 09-60702-CIV, 2009 WL 10701040, at *1 (S.D. Fla. Aug. 20,

2009) (“[T]he Court will not exercise discretion to transfer a case to another

federal district court, when that action is not being requested.”); Ploharski v. EBay

Inc., No. 1:00-CV-0799, 2000 WL 35778242, at *7 n.9 (N.D. Ga. Aug. 2, 2000)

(declining to transfer a case to proper venue where “neither party has requested a

transfer” and the plaintiff “[p]resumably ... will have no difficulty refiling . . . in the

appropriate venue”). Therefore, the case is dismissed as to Defendants Tran and

Chicago AquaLeisure under 28 U.S.C. § 1406(a).

B. Rule 12(b)(7) Motion

Pursuant to Federal Rule of Civil Procedure 19, necessary and indispensable

parties must be joined to an action “when feasible.” To determine if a party is

necessary and indispensable, the court applies a two-part test. “First, the court

must ascertain under the standards of Rule 19(a) whether the person in question

is one who should be joined if feasible.” Challenge Homes, Inc. v. Greater Naples

Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir. 1982) Second, if joinder of a necessary

person is not feasible—for example, the person is not subject to personal

jurisdiction—a court must determine “whether the Rule 19(b) factors permit the

litigation to continue if the party cannot be joined, or instead whether they are

indispensable.” Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1039

(11th Cir. 2014).

“A person is a required party—or a necessary party—when (1) ‘in that

person’s absence, the court cannot accord complete relief among existing parties,’

or (2) where the absent party claims an interest relating to the action, disposing of

the action without the absent party may ‘as a practical matter impair or impede the

person’s ability to protect the interest; or leave an existing party subject to a

substantial risk of incurring double, multiple, or otherwise inconsistent obligations

because of the interest.’” Santiago v. Honeywell Int’l, Inc., 768 F. App’x 1000, 1004

(11th Cir. 2019) (quoting Fed. R. Civ. P. 19(a)).

If a party is found to be a necessary party, “Rule 19(b) then sets forth four

nonexclusive factors that must be examined in each case to determine whether, in

equity and good conscience, the court should proceed without a party whose

absence from the litigation is compelled.” Id. (quotation omitted). These factors

include: “(1) how prejudicial a judgment would be to the nonjoined and joined

parties”; (2) “whether the prejudice could be lessened depending on the relief

fashioned”; (3) “whether the judgment without joinder would be adequate”; and

(4) “whether the plaintiff would have any alternative remedies were the case

dismissed for nonjoinder.” Laker Airways, Inc. v. British Airways, PLC, 182 F.3d

843, 848 (11th Cir. 1999).

Here, Neverauskas argues that the Injured Bathers—Velkova, Batochir, and

Houle—are necessary and indispensable parties who cannot be joined because this

Court lacks personal jurisdiction over them. (Doc. 46). The Eleventh Circuit has

held that underlying tort claimants suing an insured are required parties to an

insurer’s action for declaratory judgment regarding a duty to defend or indemnify

the insured in the underlying action. Ranger Insurance Co. v. United Housing of

New Mexico, 488 F.2d 682, 683 (5th Cir. 1974) (reasoning the underlying

claimants were necessary because they had an interest in ensuring the insured had

the resources to pay a judgment if they obtained one); Am. Safety Cas. Ins. Co. v.

Condor Assocs., Ltd., 129 F. App’x 540, 542 (11th Cir. 2005) (same). This case is

no different.

The Injured Bathers are not materially distinguishable from the tort

claimants in Ranger, who were indispensable. 488 F.2d at 683–84. First, the

Injured Bathers have an interest in ensuring Defendants have the means to pay a

judgment against them, which would be impaired if disposed of in their absence,

requiring additional litigation that could result in inconsistent judgments. Their

joinder is infeasible because this Court lacks personal jurisdiction over them. See

Hanson v. Denckla, 357 U.S. 235, 245 (1958) (holding indispensable party over

whom the court had not obtained personal jurisdiction necessary to the judgment).

In the Injured Bathers’ absence, a judgment in this case would not bind them—

resulting either in prejudice by potentially forcing relitigation of the coverage issue,

or a judgment that does not accord complete relief to the parties. See Ranger, 488

F.2d at 683–84. And last, adequate alternative remedies exist when a plaintiff

could sue effectively in another forum where better joinder would be possible. Id.

at 684; Broussard v. Columbia Gulf Transmission Co., 398 F.2d 885, 889 (5th Cir.

1968). Here, Plaintiff concedes that the insurance policy “would also permit this

action to be brought in the Northern District of Illinois, where there seems to be

no doubt that the tort victims could be joined.” (Doc. 57, p. 4). The Injured Bathers

are therefore necessary and indispensable, and the action should be dismissed in

their absence.

In asserting the contrary, Plaintiff points to an Eleventh Circuit case denying

intervention as of right to a tort claimant in a declaratory action brought by an

insurer against an insured. See Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc.,

425 F.3d 1308, 1311 (11th Cir. 2005). Interpreting Federal Rule of Civil Procedure

24(a)(2), the Mt. Hawley court determined a tort claimant must have a “legally

protectable” interest “which the substantive law recognizes as belonging to or

being owned by the [claimant]” in order to intervene. Id. The tort claimant’s

“purely economic” and “speculative” interest in recovering a potential judgment

would not qualify. Id. In other words, the Rule 24 claimant must have secured an

actual judgment against the insured. Id. at 1311–12.

Admittedly, some tension would appear to exist between Ranger’s holding

that a claimant is required under Rule 19(a)(1)(B)(i) and Mt. Hawley’s holding that

a claimant does not have a protectable interest under Rule 24(a)(2). See FED. R.

CIV. P. 24 advisory committee’s note to 1966 amendment (describing Rule 24(a)(2)

as “a kind of counterpart” to Rule 19(a)(1)(B)). However, similar words and

phrases must not be viewed in isolation, but rather in their context and with a view

to their place in the overall scheme “as a whole.” See Burns v. Lawther, 53 F.3d

137, 1241 (11th Cir. 1995) (per curiam). While acknowledging “the almost, if not

quite, uniform language” between the two rules and the “deliberate efforts” by the

Advisory Committee to “dovetail” them in 1966, the former Fifth Circuit expressly

declined to interpret Rule 24(a)(2) and Rule 19(a)(1)(B) as rigidly coextensive.

Atlantis Dev. Corp. v. United States, 379 F.2d 818, 825 (5th Cir. 1967). In the years

since, the Eleventh Circuit has not cabined Rule 19(a)(1)(B) to only those persons

who claim a “direct, substantial, and legally protectable” interest in the subject of

the action—and “[g]iven the ruling in [Ranger], which held the tort claimants to

be necessary parties even without a legally protected interest as defined in [Mt.

Hawley], it could not easily do so.” White-Spunner Constr., Inc. v. Zurich Am. Ins.

Co., No. 10–158–WS–C, 2010 WL 3489956, at *4, n.5 (S.D. Ala. Aug. 30, 2010).

Courts in this circuit have long treated the interests under consideration for

Rule 19(a) to extend beyond those legally protectable. Following the 1966

Amendments, the former Fifth Circuit held district courts “have broad discretion”

to identify individuals who should be joined if feasible, which the Supreme Court

described as a “large category.”2 By contrast, the former Fifth Circuit adopted a

“somewhat narrow reading of the term ‘interest’” in Rule 24(a), in line with its

2 English v. Seaboard Coast Line R. Co., 465 F.2d 43, 47 (5th Cir. 1972) (acknowledging courts

“traditional broad discretion to order joinder under Rule 19”); Provident Tradesmens Bank &

Tr. Co. v. Patterson, 390 U.S. 102, 118 (1968) (“large category”).

historical constraints and the intent of its drafters. United States v. Perry Cnty.

Bd. of Ed., 567 F.2d 277, 279 (5th Cir. 1978). Textual differences between the rules

further demonstrate that the requirements for a necessary party are broader than

for intervention. Compare FED. R. CIV. P. 24, with FED. R. CIV. P. 19. A required

party has “an interest relating to the subject of the action,” which is concerned with

“pragmatic considerations” rather than “the technical or abstract character of the

rights or obligations of the persons whose joinder [is] in question.” Schutten v.

Shell Oil Co., 421 F.2d 869, 873 (5th Cir. 1970) (explaining the focus of Rule 19 is

on “pragmatic considerations” rather than “the technical or abstract character of

the rights or obligations of the persons whose joinder [is] in question”). An

intervener has “an interest relating to the property or transaction that is the

subject of the action.” See Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.

1970) (noting intervention historically considers “an interest in the property or

other rights that are at issue,” as opposed to the completeness of relief a court may

grant or the potential for repeated lawsuits). It follows that the phrase “an interest

relating to the subject of the action” in Rule 19(a) casts a wider net than the

interests contemplated by Rule 24(a)(2). See FED. R. CIV. P. 19(a)(1)(A), (B)(ii).

Accordingly, a person claiming “an interest relating to the subject of the action”

that would not provide for intervention as of right may still be a required party—

like a tort claimant suing an insured. See Ranger, 488 F.2d at 683.

Even to the extent Ranger and Mt. Hawley were to conflict, this Court is

obligated to follow the earlier precedent. Monaghan v. Worldpay US, Inc., 955

F.3d 855, 862 (11th Cir. 2020) (“Our adherence to the prior-panel rule is strict, but

when there are conflicting prior panel decisions, the oldest one controls.”). Plaintiff

unconvincingly attempts to graft the holding in Mt. Hawley onto Ranger because

the tort claimants in that case did secure a judgment against the insured before the

appeal’s conclusion. (Doc. 57, pp. 7–8). But the Ranger claimants had not obtained

a judgment at the time of the original Rule 19 dismissal, which the former Fifth

Circuit affirmed based on “the possibility,” not the “actuality,” of the claimants

“obtaining a judgment against the insureds.” 488 F.2d at 682–83. In a subsequent

unpublished case, the Eleventh Circuit applied Ranger in affirming that

underlying tort claimants who had not yet obtained a judgment were indispensable

parties. Am. Safety Cas. Ins. Co., 129 F. App’x at 542. District courts confronting

this issue have largely resolved to follow Ranger—either determining themselves

bound to follow the earlier precedent or finding that Mt. Hawley does not bear on

whether a tort claimant is a required party under Rule 19. Hanover Ins. Co. v. Fla.

Coal. Against Domestic Violence Inc., 4:20-CV-148-RH-MAF, 2020 WL 5900962,

at *2 (N.D. Fla. Sept. 1, 2020); White–Spunner Construction, 2010 WL 3489956,

at *4, n.5; Lexington Ins. Co. v. Moore Stephens Tiller, LLC, 1:16-CV-0114-LMM,

2016 WL 9453996, at *3 (N.D. Ga. Apr. 29, 2016); Davis v. Banclnsure, Inc., No.

3:12-CV-113-TCB, 2013 WL 1226491, at *7 (N.D. Ga. Mar. 18, 2013). This Court

will continue in their well-reasoned footsteps. Neverauska’s Rule 12(b)(7) motion

is therefore granted.

C. Crossclaims

Both Tran and Neverauskas agree the proper forum for litigating crossclaims

is in Illinois. (Doc. 34, p. 20; Doc. 56, pp. 7–9; Doc. 59, ¶¶ 22–23). In its crossclaim,

Chicago AquaLeisure also asserts proper venue is in Illinois. (Doc. 33, p. 20).

Neverauskas argues that Tran’s crossclaim should be dismissed for improper

venue—but did so by invoking Federal Rule of Civil Procedure 12(b)(6), which does

not address venue. (Doc. 46, p. 9). Tran responds that the Court should transfer

the action to Illinois under § 1404(a). (Doc. 59, ¶¶ 22–24).

Instead, the Court will exercise its power to raise defective venue sua sponte

under 28 U.S.C. § 1406(a) in the presence of the parties’ position on the issue.

Lipofsky, 861 F.2d at 1258. As previously explained, venue in the Middle District

of Florida is improper because a substantial portion of the events did not occur

here—which Neverauskas, Tran, and Chicago AquaLeisure do not contest. See

infra Part II.A. Given that the underlying action was dismissed and the parties may

easily refile their claims, the Court finds dismissal of all crossclaims to be

appropriate here. Neverauska’s Motion to Dismiss Crossclaims is therefore moot.

III. CONCLUSION

Accordingly, it is ORDERED that:

1. Venue is improper as to Defendants Tran and Chicago AquaLeisure.

2. Neverauska’s Motion to Dismiss Plaintiff’s Amended Complaint (Doc.

46) is GRANTED.

3. Neverauska’s Motion to Dismiss Tran’s Crossclaims (Doc. 56) is

DENIED AS MOOT.

4. Plaintiffs Amended Complaint (Doc. 21), as well as Defendants’

Counterclaims and Crossclaims (Docs. 33, 34) are DISMISSED.

5. The Clerk is DIRECTED to close the file.

DONE AND ORDERED in Orlando, Florida on November 7, 2023.

Qae

PAUL G.

UNITED STATES#@ISTRICT JUDGE

Copies furnished to:

Counsel of Record