Mora v. Visionworks of America, Inc.

Filing 31

ORDER denying 27 Motion to Dismiss for Failure to State a Claim and directing Defendant to file its answer and defenses within fourteen (14) days in accord with the attached order. Signed by Judge Richard A. Lazzara on 5/2/2018. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JENNIFER MORA, on behalf of herself and a
proposed class of all similarly-situated persons,
Plaintiff,
v.

CASE NO. 8:18-cv-335-T-26JSS

VISIONWORKS OF AMERICA, INC.,
Defendant.
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ORDER
PENDING BEFORE THE COURT for resolution is Defendant’s Motion to
Dismiss Amended Complaint and Supporting Memorandum of Law (Dkt. 27) to which
Plaintiff has filed her Opposition to Defendant’s Motion to Dismiss (Dkt. 30). After
careful review of the parties’ submissions, the Court concludes the motion is due to be
denied.
Plaintiff has filed a two-count amended class action complaint accusing Defendant
of violating Florida’s Deceptive and Unfair Trade Practices Act, section 501.201, et seq.,
of the Florida Statutes (the FDUTPA) (count one) and of unjust enrichment (count two).1
Plaintiff challenges, as deceptive and unfair, Defendant’s repeated and continuous use of

1

In an order entered March 29, 2018, at docket 25, the Court directed Plaintiff to
replead her complaint because the initial complaint was a “quintessential shotgun pleading[.]”

its “Buy One Get One Free” program with regard to the purchase of eyeglasses at
Defendant’s retail stores. Plaintiff seeks to represent all Florida consumers who
purchased eyeglasses from Defendant pursuant to this program.
After carefully considering the well-pleaded factual allegations of Plaintiff’s
amended complaint, which this Court must accept as true at this early juncture of the
proceedings, and construing those allegations and the reasonable inferences from those
allegations in the light most favorable to Plaintiff,2 Defendant’s Motion to Dismiss
Amended Complaint (Dkt. 27) is denied. After drawing upon this Court’s judicial
experience and common sense,3 the Court is convinced that Plaintiff’s extremely detailed
factual allegations in paragraphs eleven through twenty-five (as supplemented by the
other allegations) are more than sufficient to survive Defendant’s motion to dismiss in
that those allegations state claims for relief that are plausible on their face against
Defendant.4 Furthermore, the Court is more than satisfied that those factual allegations
are more than sufficient to allow the Court to draw the reasonable inference that
Defendant is liable for the misconduct alleged in both counts of the amended complaint.
In the Court’s view, Plaintiff has more than adequately alleged actual damages, has
more than satisfied the pleading requirements imposed by Rule 9(b) of the Federal Rules

2

See Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016).

3

See Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012).

4

Bishop, 817 F.3d at 1270.
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of Civil Procedure, if in fact that rule applies, and has sufficiently cured the “shotgun”
nature of her original complaint. Additionally, the Court rejects Defendant’s contention
that Plaintiff is precluded from bringing a cause of action grounded in unjust enrichment
because she has an adequate remedy at law under the FDUTPA. What Defendant
overlooks is the pleading standard of Rule 8(d)(3) of the Federal Rules of Civil Procedure
which explicitly provides that “[a] party may state as many claims or defenses as it has,
regardless of consistency.” Any concerns about Plaintiff’s ability to sustain her claims
successfully against Defendant are more appropriately raised within the context of a
motion for summary judgment after the completion of full discovery.
ACCORDINGLY, Defendant is directed to file its answer and defenses to
Plaintiff’s amended complaint within fourteen (14) days of this order.
DONE AND ORDERED at Tampa, Florida, on May 2, 2018.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

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