Zoom Tan, LLC v. Heartland Tanning, Inc. et al
Filing
58
OPINION AND ORDER granting Light Sources, Inc.'s Motion to Dismiss Plaintiff's First Amended Complaint 46 . All counts asserted against this defendant are dismissed without prejudice. Further granting in part and denying in part Heartlan d Tanning, Inc.'s Motion to Dismiss Plaintiff's First Amended Complaint 47 . The claims for breach of implied warranty of fitness for a particular purpose and negligent misrepresentation are dismissed without prejudice. The motion is otherwise denied. Plaintiff may file a second amended complaint within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 10/21/2013. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ZOOM TAN, LLC,
Plaintiff,
vs.
Case No.
HEARTLAND
TANNING,
SOURCES, INC.,
INC.,
2:12-cv-684-FtM-29UAM
LIGHT
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant Light Sources,
Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc.
#46) filed on June 19, 2013, and Defendant Heartland Tanning,
Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc.
#47) filed on June 20, 2013.
Plaintiff Zoom Tan, LLC filed
Oppositions to the motions (Docs. # 51, 52) on July 3, 2013.
I.
The First Amended Complaint (Doc. #45) alleges the following:
Plaintiff Zoom Tan, LLC (plaintiff) operates high end tanning
salons throughout Florida and New York.
Heartland Tanning, Inc.
(Heartland) and Light Sources, Inc. (Light Sources) entered into a
joint venture to develop, market, and sell the Heartland Sundazzler
(Sundazzler Beds), a line of commercial tanning beds.
Heartland
and Light Sources jointly marketed to plaintiff that the Sundazzler
Beds were American made, precision engineered, and that the beds
would
provide
superior
performance,
outstanding
durability,
unsurpassed comfort, and flawless tanning.
Heartland further
marketed the Sundazzler Beds as follows:
Drench your customers in vertical bliss! Powered by 54
Rave 220 watt lamps, this incredible bronzing system
delivers immediate color for dazzling results. Easily
integrate this tanning booth into your salon with an
attached dressing room option. Offering value, results
and profitability in an engineered tanning booth, the
Sundazzler is your answer for vertical tanning.
X
X
X
Sundazzler. DAZZLE YOUR CUSTOMERS WITH AMAZING TANNING
POWER, 54 220W LAMPS, 9 MIN. LAMPS 54 RAVE 220 WATT
LAMPS. SESSIONS 9-10 MINUTE.
Plaintiff, relying on these representations, ordered a large
quantity of Sundazzler Beds.
Plaintiff’s customers, however, were
generally dissatisfied with the Sundazzler Beds because they were
not getting tan during the nine-minute sessions.
complaints
from
its
customers,
plaintiff
After receiving
ordered
independent
testing that revealed a number of defects with the beds. Plaintiff
informed Heartland and Light Sources that the Sundazzler Beds
constituted
nonconforming
goods
and
demanded
that
the
non-
conformities be remedied, but Heartland and Light Sources failed to
comply.
As a result, plaintiff initiated this action on December 19,
2012.
Plaintiff’s First Amended Complaint asserts claims for
breach of contract (Counts I and II), breach of express warranties
(Counts III and IV), breach of implied warranties (Counts V and
-2-
VI), and negligent misrepresentation (Counts VII and VIII).
(Doc.
#45.)
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
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). This
obligation “requires 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)
(citations omitted). To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
accusation.”
an
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff, Erickson v. Pardus, 551
U.S. 89, 94 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
supported by mere conclusory statements, do not suffice.”
-3-
action,
Iqbal,
556 U.S. at 678.
with
a
“Factual allegations that are merely consistent
defendant’s
plausible.”
liability
fall
short
of
being
facially
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (internal quotation marks and citations omitted). Thus,
the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and
then
determine
whether
entitlement to relief.”
they
plausibly
give
rise
to
an
Iqbal, 556 U.S. at 679.
III.
A.
Claims Against Light Sources
Plaintiff alleges that Light Sources is liable for the claims
asserted in the First Amended Complaint because of its joint
venture relationship with Heartland.
Light Sources asserts that
the claims against it should be dismissed because plaintiff has
failed to adequately allege the existence of a joint venture.
(Doc. #46, p. 1.)
The Court agrees.
In order for a joint venture to exist, there must be: (1) a
community of interest in the performance of a common purpose; (2)
joint control or right of control; (3) a joint proprietary interest
in the subject matter; (4) a right to share in the profits; and (5)
a duty to share in any losses which may be sustained.
Austin v.
Duval Cnty. Sch. Bd., 657 So. 2d 945, 948 (Fla. 1st DCA 1995)
(citing Kislak v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957)). Here,
plaintiff alleges that “Heartland and Light Sources entered into a
-4-
joint
venture
for
the
design,
marketing,
sales,
supply,
and
servicing of the Sundazzler Beds, which included Light Sources’
tanning lamps/bulbs.”
(Doc. #45, ¶ 11.)
Plaintiff follows this
assertion with a mere recital of the elements of a joint venture.
(Id. ¶ 12.)
Such allegations are insufficient to plead the
existence of a joint venture.
See Fojtasek v. NCL (Bahamas) Ltd.,
613 F. Supp. 2d 1351, 1357 (S.D. Fla. 2009).
Accordingly, the
claims against Light Sources are dismissed without prejudice.
B.
Count I - Breach of Contract
In order to plead a claim for breach of contract under Florida
law, a plaintiff must assert the existence of a valid contract, a
material breach, and damages. Rollins, Inc. v. Butland, 951 So. 2d
860, 876 (Fla. 2d DCA 2006).
The allegations in the First Amended
Complaint are sufficient to plead the required elements of a breach
of contract claim.
a
contract
with
First, plaintiff alleges that it entered into
Heartland
to
purchase
a
large
quantity
of
Sundazzler Beds, which is evidenced by the invoices attached to the
Complaint.
(Doc. #45, ¶ 24.)
Next, plaintiff asserts that it paid
the agreed upon consideration for all of the tanning beds, but
Heartland breached the contract by providing Sundazzler Beds that
did not meet the agreed upon standards.
(Id. ¶¶ 25-26.)
Finally,
plaintiff asserts that is sustained damages including loss of
business and money spent repairing the Sundazzler Beds.
(Id. ¶
27.) Because these allegations are sufficient to state a claim for
-5-
breach of contract, Heartland’s motion to dismiss Count I is
denied.
C.
Count III - Breach of Express Warranty
Heartland contends that plaintiff failed to state a claim for
breach of express warranty because the alleged representations
amount to nothing more than mere puffery.
(Doc. #47, p. 6.)
An
express warranty is “[a]ny affirmation of fact or promise made by
the seller to the buyer which relates to the goods and becomes a
basis of the bargain[.]” Fla. Stat. § 672.313(1)(a). However, “an
affirmation merely of the value of the goods or a statement
purporting to be merely the seller’s opinion or commendation of the
goods does not create a warranty.”
Fla. Stat. § 672.313(2).
The
existence of an express warranty is a factual issue for the jury to
decide.
State Farm Ins. Co. v. Nu Prime Roll-A-Way of Miami, 557
So. 2d 107, 109 (Fla. 3d DCA 1990).
Here, plaintiff alleges that Heartland represented that the
Sundazzler Beds would include 54 220-watt lamps and would provide
complete tanning sessions in 9-10 minutes.
(Doc. #45, ¶¶ 15, 39.)
Because these representations could amount to more than an opinion
or puffery, plaintiff’s allegations are sufficient to survive a
motion to dismiss.
See Moss v. Walgreen Co., 765 F. Supp. 2d 1363,
1368 (S.D. Fla. 2011); Doug Connor, Inc. v. Proto-Grind, Inc., 761
So. 2d 426, 429 (Fla. 5th DCA 2000).
-6-
Consequently, Heartland’s
motion to dismiss Count III of plaintiff’s First Amended Complaint
is denied.
D.
Count V - Breach of Implied Warranties
1.
Breach of Implied Warranty of Merchantability
Implied in every contract for the sale of goods, unless
otherwise excluded, is a warranty that the goods are merchantablei.e, “fit for the ordinary purpose for which such goods are used”if the seller is a merchant with respect to goods of that kind.
Fla. Stat. § 672.314.
To state a claim for breach of an implied
warranty of merchantability, the plaintiff must allege that (1) it
was a foreseeable user of the product, (2) the product was used in
the intended manner at the time of the injury, (3) the product was
defective when transferred from the warrantor, and (4) the defect
caused the injury.
Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d
1331, 1340 (S.D. Fla. 2011) (citing Amoroso v. Samuel Friedland
Family Enters., 604 So.2d 827, 833 (Fla. 4th DCA 1992)).
Plaintiff alleges that it operates high end tanning salons
(Doc. #45, ¶ 7), it used the Sundazzler Beds as tanning beds (Id.
¶ 17), the Sundazzler Beds lacked the power to drive the 220 watt
tanning lamps, and the lamps and lamp holders were prematurely
wearing out (Id. ¶ 19), and as a result of the defects, plaintiff’s
customers were terminating their memberships because they were not
getting tan (Id. ¶¶ 17-18). The Court finds that these allegations
-7-
are sufficient to state a claim for breach of the implied warranty
of merchantability.
2.
Breach of Implied Warranty of Fitness for a Particular
Purpose
An implied warranty of fitness for a particular purpose arises
where a seller has reason to know of a particular purpose for which
the goods are required and the buyer relies on the seller’s skill
or judgment to select or furnish suitable goods.
672.315.
Fla. Stat. §
A “particular purpose” differs from the ordinary purpose
in that it envisages a specific use by the buyer which is peculiar
to the nature of its business.
See Official Comment 2 to Fla.
Stat. § 672.315.
Plaintiff alleges that it relied on Heartland’s skill and
judgment to select and furnish commercial tanning beds with amazing
tanning power.
(Doc. #45, ¶¶ 57-58.)
Plaintiff, however, has
failed to allege that it used the Sundazzler Beds for anything
other than their ordinary purpose or that its use of the Sundazzler
Beds was peculiar
to the nature of its business.
As such,
plaintiff has failed to state a claim for breach of implied
warranty of fitness for a particular purpose.
E.
Count VII - Negligent Misrepresentation
To state a claim for negligent misrepresentation, plaintiff
must allege: (1) a misrepresentation of material fact; (2) that
defendant knew of the misrepresentation, made the representation
-8-
without knowledge of its truth or falsity, or should have known the
representation was false; (3) that defendant intended to induce
another to act on the misrepresentation; and (4) that an injury
resulted
in
justifiable
reliance
upon
the
misrepresentation.
Atlantic Nat’l Bank of Fla. v. Vest, 480 So. 2d 1328, 1331-32 (Fla.
2d DCA 1985) (citations omitted).
Because a claim for negligent
misrepresentation sounds in fraud, it is subject to the heightened
pleading standard of Rule 9(b).
Drilling Consultants, Inc. v.
First Montauk Sec. Corp., 806 F. Supp. 2d 1228, 1234 (M.D. Fla.
2011) (citations omitted).
“In
a
requirement,
complaint
plaintiffs
subject
retain
to
the
Rule
dual
9(b)’s
particularity
burden
of
providing
sufficient particularity as to the fraud while maintaining a sense
of brevity and clarity in the drafting of the claim, in accord with
Rule 8.”
Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1278
(11th Cir. 2006).
“The particularity requirements of Rule 9(b) is
satisfied if the complaint alleges ‘facts as to time, place, and
substance
of
the
defendant’s
alleged
fraud,
specifically
the
details of the defendant[’s] allegedly fraudulent acts, when they
occurred, and who engaged in them.’” United States ex rel. Matheny
v. Medco Health Solutions, Inc., 671 F.3d 1217, 1222 (11th Cir.
2012) (quoting Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1324
(11th Cir. 2009) (citations and internal quotation marks omitted)).
“This means the who, what, when[,] where, and how: the first
-9-
paragraph of any newspaper story.”
Garfield v. NDC Health Corp.,
466 F.3d 1255, 1262 (11th Cir. 2006) (citations omitted).
Upon review of the allegations in Count VII, coupled with the
underlying factual allegations, the Court finds that the claim for
negligent
misrepresentation
is
not
adequately
pled
with
specificity.
Plaintiff alleges that Heartland and Light Sources
“made
statements
false
regarding
the
length
of
the
tanning
sessions, the color the customers would get from the use of the
Sundazzler Beds, the watts of power capable of being put out by the
Sundazzler Beds, as well as the quality and lifespan of the Light
Sources lamps/bulbs.”
(Doc. #45, ¶¶ 69, 77.)
Plaintiff has not
identified when the statements were made, how the statements were
communicated, the person who made the statements, or to whom the
statements were made.
Based on the foregoing, Count VII must be
dismissed.
Heartland contends that Count VII should be dismissed with
prejudice because any recovery in tort is barred by the economic
loss rule.
(Doc. #47, p. 12.)
argument is without merit.
confined the
involving
application
The Court finds that Heartland’s
The Supreme Court of Florida recently
of
products liability.
the
economic
Tiara
loss
Condo
rule
Ass’n
McLennan Cos., 110 So. 3d 399, 407 (Fla. 2013).
v.
to cases
Marsh
&
Because this is
not a products liability case, the economic loss rule cannot serve
-10-
as
a
basis
for
dismissing
plaintiff’s
claims
for
negligent
misrepresentation with prejudice.
Accordingly, it is now
ORDERED:
1.
Defendant
Light
Sources,
Inc.’s
Motion
to
Dismiss
Plaintiff’s First Amended Complaint (Doc. #46) is GRANTED. All
counts
asserted
against
this
defendant
are
DISMISSED
WITHOUT
PREJUDICE.
2.
Defendant Heartland Tanning, Inc.’s Motion to Dismiss
Plaintiff’s First Amended Complaint (Doc. #47) is GRANTED in part
and DENIED in part.
The claims for breach of implied warranty of
fitness for a particular purpose and negligent misrepresentation
are DISMISSED WITHOUT PREJUDICE.
3.
The motion is otherwise DENIED.
Plaintiff may file a second amended complaint WITHIN
TWENTY ONE (21) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2013.
Copies: Counsel of record
-11-
21st
day of
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