TSA,LLC v. Lewis

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 24-CV-61972-ARTAU/VALLE
TSA, LLC,
Plaintiff,
v.
BERT DAMIAN LEWIS,
Defendant.
____________________________________/
REPORT AND RECOMMENDATION TO DISTRICT JUDGE
THIS MATTER comes before the Court upon Plaintiff TSA, LLC’s (“TSA” or “Plaintiff”):
(i) Motion to Dismiss Defendant Bert Damian Lewis’ Amended Counterclaim (ECF No. 44) (the
“Motion to Dismiss”); and (ii) Motion for Summary Judgment (ECF No. 45) (the “Motion for
Summary Judgment”) (together, the “Motions”). The District Judge has referred this matter to the
undersigned for a ruling on all pre-trial, non-dispositive matters, and for a Report and
Recommendation on all dispositive matters. (ECF No. 25).
Having reviewed the Motions, pro se Defendant’s Response (ECF No. 48, 49), Plaintiff’s
Replies (ECF Nos. 50, 51), and being fully advised in the matter, the undersigned recommends
that: (i) the Motion to Dismiss be GRANTED; and (ii) the Motion for Summary Judgment be
DENIED WITHOUTH PREJUDICE for the reasons set forth below.
I. 	BACKGROUND
On October 22, 2024, TSA filed its Complaint against pro se Defendant Bert Lewis
(“Defendant”) to remove a lien on the vessel “Crowned Eagle” and to recover damages for
Defendant’s alleged illegal videotaping on board the vessel without approval or consent, among
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other things. See generally (ECF No. 1). On December 31, 2024, Defendant filed his Answer and
initial Counterclaim. (ECF No. 15). In response, TSA filed a Motion to Dismiss the Counterclaim.
(ECF No. 16). Defendant, in turn, sought leave to Amend the Counterclaim. (ECF No. 19). The
undersigned issued an Omnibus Order denying several of Defendant’s motions, but granted
Defendant leave to amend the Counterclaim. 	See generally (ECF No. 42). 	Defendant
subsequently filed his Amended Counterclaim. 	(ECF No. 44). The instant Motion to Dismiss
followed. (ECF No. 44).
Contemporaneous with its Motion to Dismiss, TSA filed the Motion for Summary
Judgment. 	See generally (ECF Nos. 45, 46). 	In seeking summary judgment, TSA argues that
Defendant has failed to respond to any of TSA’s discovery requests, including Requests for
Admissions. See (ECF No. 45 at 3). According to TSA, there remains no genuine issue of material
fact, and it should be awarded judgment on all claims. Id.
II. 	MOTION TO DISMISS
A. 	General Standard
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” or “a formulaic
recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	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)). 	“[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).
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When reviewing a motion to dismiss, a court generally must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. 	See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). 	A court is
ordinarily limited to the facts contained in the complaint and attached exhibits, including
documents referenced in the complaint that are central to the claim. 	See Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). While the court is required to accept as true all
allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; see also
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (“Legal conclusions without adequate
factual support are entitled to no assumption of truth.”).
B. Plaintiff’s Motion to Dismiss is Timely
Defendant argues that the Motion to Dismiss should be denied as untimely. (ECF No. 48
at 1, 2). This argument, however, is without merit. Although signed by Defendant on July 3, 2025,
and date-stamped by the Clerk of Court on July 8, 2025, the Amended Counterclaim was docketed
on July 9, 2025. (ECF No. 43 at 1, 11). Plaintiff filed its Motion to Dismiss on July 23, 2025,
which was within the permissible 14-day period. Accordingly, the Motion to Dismiss is timely
and is reviewed on the merits.
C. Fraudulent Concealment (Count I)
Under Florida law, to state a claim for fraudulent concealment, a party must allege that
another party: (i) “concealed or failed to disclose a material fact;” (ii) that they “knew or should
have known the material fact should be disclosed;” (iii) “knew their concealment of or failure to
disclose the material fact would induce the plaintiff[] to act;” (iv) “had a duty to disclose the
material fact;” and (v) “the plaintiff[] detrimentally relied on the misinformation.” Hess v. Phillip
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Morris USA, Inc., 175 So. 3d 687, 691 (Fla. 2015). 	A party who seeks to state a claim for
fraudulent concealment under Florida law is required to allege the existence of a duty to disclose
the concealed facts. 	Gutter v. Wunker, 631 So. 2d 1117, 1118-19 (Fla. 4th DCA 1994) (listing
elements of a fraudulent misrepresentation claim and explaining that “[a] defendant’s knowing
concealment or nondisclosure of a material fact may also support an action for fraud where there
is a duty to disclose” (citations omitted)). Claims of fraudulent concealment must also be plead
with particularity. 	See Fed. R. Civ. P. 9(b); see also Lucky Capital Mgmt. v. Miller & Martin,
PLLC, 762 F. App’x 719, 726 (11th Cir. 2019) (explaining that “fraud-based allegations must be
pleaded with particularity”). 	Thus, a complaint alleging fraudulent concealment must state:
(i) precisely what statements were made; (ii) the time and place of each statement and the person
responsible for making the statement; (iii) the content of each statement and how those statements
misled the plaintiff; and (iv) what the defendants obtained resulting from the fraud. Graveling v.
Castle Mortg. Co., 631 F. App’x 690, 694 (11th Cir. 2015).
Here, the Amended Counterclaim fails to allege that TSA is vicariously liable for the
alleged actions of Captain Pattee or whether the alleged conduct was within the scope of Captain
Pattee’s employment. See (ECF No. 43 ¶¶ 30-38). Rather, Count I summarily alleges that Captain
Pattee “concealed his intent not to sign the contract” and had a “duty to disclose.” Id. ¶¶ 31-32.
The Amended Counterclaim, however, fails to allege any duty to sign a contract and/or a legal
obligation to disclose. 	Defendant’s arguments in opposition to the Motion to Dismiss, see
(ECF No. 48 at 1-5), do not cure the fatal omissions of Count I as Defendant may not amend his
claims through a response a motion to dismiss. 	Watkins v. Six Unknown Broward Sherriff Jail
Deputies, No. 14-CV-62095, 2015 WL 13203924, at *2 (S.D. Fla. Dec. 2, 2015) (citation omitted).
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Count I also fails to meet the particularity requirement of Federal Rule of Civil Procedure
9(b). 	See, e.g., Alcon Lab’ys, Inc. v. Allied Vision Grp., Inc., No. 18-CV-61638, 2019 WL
2245584, at *9 (S.D. Fla. Mar. 7, 2019) (noting that circumstances constituting fraud or mistake
shall be stated with particularity), report and recommendation adopted, 2019 WL 2245262 (S.D.
Fla. Apr. 2, 2019). 	Accordingly, Defendant’s fraudulent concealment claim alleged in Count I
fails as a matter of law and should be dismissed.
D. Negligence (Count II)
“To properly plead a negligence claim, a plaintiff must establish that: (i) defendant owed
the plaintiff a duty; (ii) defendant breached its duty; (iii) plaintiff’s injury was caused by the
defendant’s breach; and (iv) plaintiff was damaged. See Alcon, 2019 WL 2245584, at *5 (citations
omitted). 	Under Florida law, a duty of care arises from four sources: statutes and regulations;
judicial interpretation of legislation; judicial decisions; and duties arising from the facts of a case.
Id.
In Count II, Defendant alleges that TSA owed him a duty to provide a reasonably safe place
to work, and that Captain Pattee breached this duty “by neglecting to conduct safety briefings or
provide a written contract to Mr. Lewis stipulating his duties prior to departing the United States.”
(ECF No. 43 ¶¶ 40, 41). 	Notably, however, Defendant does not allege that TSA breached this
duty, nor that it is vicariously liable for Captain Pattee’s alleged breach of this duty. 	Further,
Defendant does not allege how this purported breach of duty caused injuries or what injuries were
suffered by Defendant. Defendant alleges only “severe injuries to the body and mind,” for which
he will continue to incur medical expenses. (ECF No. 43 ¶ 43).
A 	complaint’s 	allegations 	must 	include 	“more 	than 	an 	unadorned, 	the-defendant-
unlawfully-harmed-me accusation.” Doe v. Carnival Corp., 470 F. Supp. 3d 1317, 1322-23 (S.D.
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Fla. 2020) (citing Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S.
at 555). In practice, to survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim of relief that is plausible on its face.’” 	Id. (quoting
Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. The plausibility standard requires more than a sheer possibility that a defendant has
acted unlawfully. Id. Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id.
Determining whether a complaint states a plausible claim for relief is a context-specific
undertaking that requires the court to draw upon its judicial experience and common sense.
Here, Defendant’s allegations fail to meet basic pleadings standards for a negligence claim.
See e.g., Chenault v. Seabulk Vessel Mgmt., No. 24-CV-60277, 2024 U.S. Dist. LEXIS 99051,
at *9 (S.D. Fla. Jun. 4, 2024) (dismissing complaint that vaguely attributes injuries to hazardous
nature of activity). Accordingly, Defendant’s negligence claim alleged in Count II fails as a matter
of law and should be dismissed.
E. Civil Remedies for Violation of 18 U.S.C. § 1595 (Count III) and Fla. Stat.
787.061 (Count IV)
Counts III and IV of the Amended Counterclaim allege civil remedies for violations of
federal and state criminal statutes regarding peonage, slavery and human trafficking. 	See
(ECF No. 43 ¶¶ 45-61). 	Even liberally construed, the allegations of Counts III and IV do not
support a civil claim stemming from human trafficking. Defendant does not that allege whether
TSA or Captain Pattee have faced criminal charges or that Defendant is a victim of human
trafficking. 	Moreover, Defendant alleges that Captain Pattee purchased a plane ticket for
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Defendant to leave the country. 	(ECF No. 43 ¶ 26). 	Against these allegations, Defendant’s
purported claims in Counts III and IV fail as a matter of law and should be dismissed.
F. 	Negligent Infliction of Emotional Distress (Count V)
“To maintain a negligent-infliction-of-emotional-distress claim in the absence of a direct
impact, ‘the complained-of mental distress must be ‘manifested by physical injury,’ the plaintiff
must be ‘involved’ in the incident by seeing, hearing, or arriving on the scene as the traumatizing
event occurs, and the plaintiff must suffer the complained-of mental distress and accompanying
physical impairment ‘within a short time of the incident.’” Tello v. Royal Caribbean Cruises, Ltd.,
939 F. Supp. 2d 1269, 1277 (S.D. Fla. 2013) (quoting Willis v. Gami Golden Glades, 967 So. 2d
846, 849 (Fla. 2007)). “[A] plaintiff claiming negligent infliction of emotional distress must show
either impact upon one’s person or, in certain situations, at a minimum the manifestation of
emotional distress in the form of a discernible physical injury or illness.” Tello, 939 F. Supp. 2d
at 1277 (quoting Gracey v. Eaker, 837 So. 2d 348, 355 (Fla. 2002)).
Here, Defendant summarily alleges “severe mental anguish, emotional distress, and
psychological injury accompanied by physical symptoms including but not limited to sleep
disturbances, headaches, trembling, and dermatological disorders.” 	(ECF No. 43 ¶ 66). 	As
discussed above, however, Defendant has failed to sufficiently allege a negligence claim. 	See
supra section II.D. Thus, Defendant is similarly unable to recover purported emotional distress
damages. See, e.g., Tello, 939 F. Supp. 2d at 1277 (dismissing claim for emotional distress where
plaintiff suffered no physical injury from alleged conduct). Accordingly, Defendant’s purported
claims in Count V fail as a matter of law and should be dismissed.
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G. Unseaworthiness of Crowned Eagle (Count VI)
To state a claim for unseaworthiness, a seaman must show that the unseaworthy condition
of the vessel was the proximate cause of his personal injury. 	McClow v. Warrior & Gulf
Navigation Co., 842 F.2d 1250, 1251 (11th Cir. 1988).
In Count VI, Defendant summarily alleges that the “Crowned Eagle and her crew were not
reasonably fit for [the] Crowned Eagle’s intended use” and that “[t]the unsafe work area” is the
proximate cause of Defendant’s injuries, (ECF No. 43 ¶¶ 68, 69). Notably, however, Defendant
does not allege the unseaworthiness of the Crowned Eagle or what purported injuries resulted from
any alleged unseaworthiness. See, e.g. Chenault, 2024 U.S. Dist. LEXIS 99051, at *9 (dismissing
claim where plaintiff’s allegations said “nothing about what unseaworthiness Defendants allegedly
are responsible for”); see also Martinez v. Bally’s La., Inc., 244 F.3d 474, 478 (5th Cir. 2001)
(affirming the district court’s dismissal of the plaintiff’s Jones Act claim where the plaintiff failed
to claim any physical injury resulting from the alleged negligence and thus failed to allege an
essential element of a Jones Act claim). Accordingly, Defendant’s alleged claims in Count VI fail
as a matter of law and should be dismissed.
H. Maintenance and Cure (Count VII)
Maintenance and cure is a “legal duty that obligates a vessel owner to provide for a seaman
who becomes ill or injured in service of the ship.” Varela v. Dantor Cargo Shipping, Inc., No. 17-
CV-23127, 2017 U.S. Dist. LEXIS 225019, 2017 WL 7184605, at *6 (S.D. Fla. Nov. 14, 2017).
“For a plaintiff to recover for maintenance and cure, he must prove that: ‘(1) he worked as a
seaman; (2) he became ill or injured while in the vessel’s service; and (3) he lost wages or incurred
expenditures relating to the treatment of illness or injury.’” MacMartin v. Marine Mgmt. Servs.,
No. 22-CV-610-BJD-LLL, 2023 U.S. Dist. LEXIS 21314, at *32-33 (M.D. Fla. Feb. 7, 2023)
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(citation omitted). “While maintenance and cure claims are broadly construed, plaintiff must still
plead factual content that allows the court to draw the reasonable inference that the defendants are
liable for maintenance and cure.” Id. at *34 (citation and quotations omitted).
In Count VII, Defendant alleges that on or about December 8, 2023 through December 25,
2023, he “sustained injuries and illnesses while acting in the service of the vessel, arising out of
the unsafe working conditions, lack of required safety briefings, inadequate crew training, and
other unseaworthy conditions.” 	(ECF No. 43 ¶ 72). 	In conclusory fashion, Defendant further
alleges that he “requires medical treatment and has incurred medical expenses for diagnosis and
care, and continues to incur such expenses as he has not yet reached maximum medical
improvement.” (ECF No. 43 ¶ 73). Despite alleging that TSA owes Defendant a “non-delegable
duty to provide maintenance and cure,” (ECF No. 43 ¶ 74), Defendant fails to describe how he
was injured, whether he informed TSA, and whether Defendant requested and was denied medical
treatment. With these omissions, Count VII fails to state a claim and should be dismissed. See,
e.g., MacMartin, 2023 U.S. Dist. LEXIS 21314, at *35 (recommending dismissal of maintenance
and cure claim where it was unclear whether defendants were on notice regarding plaintiff’s
alleged injury and request and/or need for medical treatment).
In sum, Defendant’s Amended Counterclaim fails to state a claim. Accordingly, Plaintiff’s
Motion to Dismiss the Amended Counterclaim should be GRANTED WITH PREJUDICE as
Defendant was previously given an opportunity to amend, but failed to sufficiently plead his
claims.
III. 	MOTION FOR SUMMARY JUDGMENT
Contemporaneous with its Motion to Dismiss, TSA filed the Motion for Summary
Judgment. 	See generally (ECF Nos. 45, 46). 	In seeking summary judgment, TSA argues that
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Defendant has failed to respond to any of TSA’s discovery requests, including Requests for
Admissions. See (ECF No. 45 at 3). According to TSA, there remains no genuine issue of material
fact and it should be awarded judgment on all claims. 	Id. at 3; see also (ECF No. 46) (TSA’s
Statement of Material Facts). In response, Defendant argues that summary judgment is premature
because the parties have not engaged in discovery or a Rule 26(f) conference, and that reliance on
Requests for Admissions would be improper. (ECF No. 48 at 5-6).
TSA relies on Sanchez v. ABC Professional Tree Service, No. 21-CV-14223, 2022
U.S. Dist. LEXIS 149249 (S.D. Fla. Aug. 19, 2022) for the proposition that uncontradicted and
unwithdrawn admissions are conclusively established, warranting summary judgment. Although
Sanchez is persuasive, based on the relatively early juncture of this case, the undersigned
recommends that the Motion for Summary Judgment be DENIED WITHOUT PREJUDICE to
allow the parties an opportunity to resolve the case without further Court intervention as set forth
below.
IV. 	RECOMMENDATION
For the reasons discussed above, the undersigned respectfully RECOMMENDS that:
1. 	Plaintiff TSA, LLC’s Motion to Dismiss Defendant Bert Damian Lewis’ Amended
Counterclaim (ECF No. 44) be GRANTED WITH PREJUDICE; and
2. 	Plaintiff’s Motion for Summary Judgment (ECF No. 45) be DENIED WITHOUT
PREJUDICE. 	Nevertheless, the District Judge should order the parties to meet and confer (in
person or telephonically) within 30 days of the Order on this Report and Recommendation. At the
meet and confer, the parties must in good faith attempt to resolve the action. 	If the parties are
unable to resolve the case, TSA may renew its request for summary relief. If Defendant fails to
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timely and properly respond to any such motion, the Court may grant summary relief as set forth
in Sanchez.
Within 14 days after being served with a copy of this Report and Recommendation, any
party may serve and file written objections to any of the above findings and recommendations.
See Mag. J. R. 4(b) (any party may object to a Magistrate Judge’s recommendation regarding
dispositive motions within 14 days or within such other time as may be allowed by the Court).
Further, within seven days, any party may respond to a parties’ objections. Id. Failure to timely
object waives the right to challenge on appeal the District Court’s order based on unobjected-to
factual and legal conclusions contained in this Report and Recommendation. 	11th Cir. R. 	3-1
(2025); see Thomas v. Arn, 474 U.S. 140 (1985).
Lastly, if the parties do not intend to file objections, they shall file a Notice of Non-
Objection within 7 days of this R&R.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, on January 28, 2026.
___________________________________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
cc: U.S. District Judge Ed Artau
Counsel of Record
Bert Damian Lewis, Pro se
769 Rue Center Court #i
Cincinnati, OH 45245
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