Foster v. Chattem, Inc.

Filing 45

ORDER granting in part and denying in part 12 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 7/23/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LAUREN FOSTER, on behalf of herself
and all others similarly situated,
Plaintiff,
v.

Case No. 6:14-cv-346-Orl-37GJK

CHATTEM, INC.,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Defendant Chattem, Inc.’s Motion to Dismiss Class Action Complaint for
Equitable Relief and Damages and Incorporated Memorandum of Law
(Doc. 12), filed May 5, 2014; and

2.

Plaintiff’s Memorandum of Law in Response and in Opposition to
Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 26), filed May 19,
2014.

Upon consideration, the Court finds that the motion is due to be granted in part and denied
in part.
BACKGROUND
This purported class action arises out of Plaintiff’s purchase of a bottle of ACT
mouthwash, which is manufactured by Defendant. (Doc. 1, ¶¶ 13, 16.) The packaging
states that the mouthwash “rebuilds tooth enamel.” (Id. ¶¶ 8, 14.) However, Plaintiff
alleges that it is not possible to “rebuild” tooth enamel; rather, Plaintiff contends that the
product only strengthens weak spots in tooth enamel via “remineralization.” (Id. ¶¶ 2–5.)

Plaintiff argues that this alleged misbranding “deceptively misleads the reasonable
consumer.” (Id. ¶ 6.) Accordingly, Plaintiff filed the Complaint, which alleges: (1) a
violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat.
§ 501.204; (2) unjust enrichment; (3) breach of implied warranty of merchantability under
state law; and (4) breach of implied warranty of merchantability under the federal
Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301. (Id. ¶¶ 62–96.)
Defendant moves to dismiss the Complaint, arguing that: (1) it does not plausibly
state a claim that the phrase “rebuilds tooth enamel” is false and does not plausibly state
a claim for damages; and (2) the breach of warranty claims fail because Plaintiff lacks
privity with Defendant. (Doc. 12.) Plaintiff opposes. (Doc. 26.) This matter is now ripe for
the Court’s adjudication.
STANDARDS
A plaintiff must plead “a short and plain statement of the claim.” Fed. R. Civ.
P. 8(a)(2). On a motion to dismiss a complaint, the Court limits its consideration to “the
well-pleaded factual allegations.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004). The factual allegations must “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this plausibility
determination, the Court must accept the factual allegations as true; however, this “tenet
. . . is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
DISCUSSION
I.

Plausibility
Defendant argues that the Complaint fails to plausibly allege that the phrase

“rebuilds tooth enamel” is false and fails to plausibly state a claim for damages. (Doc. 12,

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pp. 7–13.) The Court disagrees on both counts.
The thrust of Defendant’s first argument is that a reasonable consumer would not
differentiate between “rebuilding” tooth enamel and “repairing” or “remineralizing” it. (Id.
at 7–8.) This is a factual issue outside the scope of a motion to dismiss. See, e.g., In re
Frito-Lay N. Am., Inc. All Natural Litig., No. 12-MD-2413 (RRM)(RLM), 2013 WL 4647512,
at *15 (E.D.N.Y. Aug. 29, 2013) (holding that whether a reasonable consumer would likely
be deceived by the phrase “all natural” is a fact question not resolvable on a motion to
dismiss); Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889, 900 (N.D. Cal. 2012)
(holding that whether a reasonable consumer would be misled by the phrase “freshness”
is “a question not properly addressed on a motion to dismiss”). The Complaint alleges
that the product represented that it could rebuild tooth enamel and further alleges that the
product cannot actually rebuild tooth enamel (Doc. 1, ¶¶ 3–6); that is all that is required
at this stage. 1 See In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice
Litig., 955 F. Supp. 2d 1311, 1332 (S.D. Fla. 2013) (holding that a plaintiff’s allegation
that the product “supports brain health,” coupled with the allegation that the product did
not actually support brain health, was enough to state an FDUTPA claim).
Defendant similarly contends that the Complaint does not plausibly state a claim
for damages. (Doc. 12, p. 11.) This contention is also unavailing. Plaintiff alleges that the
product was alternatively: (1) rendered valueless due to misbranding; or (2) worth less

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Defendant also briefly argues that the Complaint does not meet the heightened
pleading requirements of Federal Rule of Civil Procedure 9(b). (Doc. 12, p. 11 n.5.)
However, Rule 9(b) does not apply to FDUTPA claims involving unfair trade practices.
See Hill v. Hoover Co., 899 F. Supp. 2d 1259, 1263 (N.D. Fla. 2012); State of Fla., Office
of Att’y Gen., Dep’t of Legal Affairs v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288,
1310 (S.D. Fla. 2005).

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than she paid due to a premium charge for the misbranded features. (Doc. 1, ¶¶ 39–40.)
She further alleges that the “true value” of the product was equal to other mouthwashes
that do not claim to rebuild enamel. (Id. ¶ 41.) Plaintiff will, of course, need to prove up
her damages at a later stage, but she has pled viable alternative theories of recovery,
and that is enough at this stage. See Rollins, Inc. v. Butland, 951 So. 2d 860, 869
(Fla. 2d DCA 2006) (stating that difference in market value is an accurate measure of
FDUTPA damages, and noting that the full purchase price is an alternative measure when
a defect renders the product valueless). Defendant’s motion to dismiss for lack of
plausibility is therefore due to be denied.
II.

Privity
Defendant also argues that the implied warranty claims in Counts III and IV fail

because Plaintiff is not in privity with Defendant. 2 (Doc. 12, pp. 13–14.) The Court agrees.
“Under Florida law, privity of contract is an essential element of a claim for breach of
implied warranty.” Bailey v. Monaco Coach Corp., 168 F. App’x 893, 894 n.1
(11th Cir. 2006); see also Kramer v. Piper Aircraft Corp., 520 So. 2d 37 (Fla. 1988)
(holding that “no-privity, breach of implied warranty cases” were supplanted by strict
liability actions (citation and internal quotation marks omitted)); Mesa v. BMW of N. Am.,
LLC, 904 So. 2d 450, 458 (Fla. 3d DCA 2005) (collecting cases).
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The MMWA claim is governed by the same standards as the state law breach of
implied warranty claim. See Bailey v. Monaco Coach Corp., 168 F. App’x 893, 894 n.1
(11th Cir. 2006) (“[I]mplied warranty claims under the MMWA arise out of and are defined
by state law.”); see also Rentas v. DaimlerChrysler Corp., 936 So. 2d 747, 751 (Fla.
4th DCA 2006) (“Because Florida law requires privity for a breach of implied warranty
claim, the plaintiff’s claim was barred under the MMWA.”); Mesa v. BMW of N. Am., LLC,
904 So. 2d 450, 458 (Fla. 3d DCA 2005) (“[T]he question of whether or not privity is a
prerequisite to a claim for breach of implied warranty under the MMWA hinges entirely on
the applicable state law.”).

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Plaintiff relies on Hoskins v. Jackson Grain Co., 63 So. 2d 514 (Fla. 1953), to argue
that this case falls under an exception to the privity requirement. (Doc. 26, p. 15.)
However, another case on which Plaintiff relies, Smith v. Wm. Wrigley Jr. Co.,
663 F. Supp. 2d 1336, 1342 (S.D. Fla. 2009), correctly notes that subsequent Florida
Supreme Court decisions “have scaled back the precedential value of Hoskins in implied
warranty cases.” Indeed, the Florida Supreme Court held in Kramer that the old
exceptions to the privity requirement were “necessarily swept away . . . in favor of the
new action of strict liability.” 520 So. 2d at 39 (citation and internal quotation marks
omitted); see also West v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla. 1976). Kramer
and West “did not result in the demise of the contract action of breach of implied warranty,
as that action remains, . . . where privity of contract is shown.” Kramer, 520 So. 2d at 39
(emphasis added) (citation and internal quotation marks omitted). Therefore, it is now
“well-settled” in Florida that “a plaintiff cannot recover economic losses for breach of
implied warranty in the absence of privity.” Smith, 663 F. Supp. 2d at 1342 (citation and
internal quotation marks omitted).
Plaintiff counters that even if privity is required, it is met where “a manufacturer
makes direct representations to the purchaser.” (Doc. 26, p. 15.) It is true that some courts
have held that direct contact between a purchaser and a manufacturer satisfies the privity
requirement at the pleadings stage; however, direct contact in that sense refers to
personal contacts between the purchaser and a representative of the manufacturer, not
merely some contact between the purchaser and the manufacturer’s product or
advertising. See, e.g., Point Blank Solutions, Inc. v. Toyobo Am., Inc., No. 09-61166-CIV,
2010 WL 4624274, at *3 (S.D. Fla. Nov. 4, 2010) (finding privity sufficiently pled where

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there was a contract concerning the product between the purchaser and the
manufacturer); Cedars of Lebanon Hosp. Corp. v. European X-Ray Distribs. of Am., Inc.,
444 So. 2d 1068, 1072 (Fla. 3d DCA 1984) (finding privity sufficiently pled where there
was direct, personal contact between the manufacturer’s sales representatives and the
purchaser). Plaintiff’s contrary position would have the direct contact exception swallow
the privity rule entirely. Because Plaintiff merely alleges that she saw the packaging in the
store and then purchased the product (Doc. 1, ¶¶ 13–14) and does not allege that any
personal contact occurred between herself and a representative of Defendant, she has
failed to demonstrate privity. Therefore, Counts III and IV are due to be dismissed without
prejudice.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendant Chattem, Inc.’s Motion to Dismiss Class Action Complaint for
Equitable Relief and Damages and Incorporated Memorandum of Law
(Doc. 12) is GRANTED IN PART AND DENIED IN PART.

2.

The motion is GRANTED as to Counts III and IV, which are DISMISSED
WITHOUT PREJUDICE.

3.

The motion is DENIED in all other respects. Counts I and II shall proceed.

DONE AND ORDERED in Chambers in Orlando, Florida, on July 23, 2014.

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Copies:
Counsel of Record

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