HILL v. THE HOOVER COMPANY et al
Filing
102
ORDER GRANTING IN PART AND DENYING IN PART THE MOTION TO DISMISS THE SECOND AMENDED COMPLAINT: Defendant's 86 Motion to Dismiss is GRANTED with prejudice as to Counts III, IV, V, VI, VII and VIII; and DENIED as to Counts I, II, IX and X. Signed by SENIOR JUDGE STEPHAN P MICKLE on 10/1/2012. (jws)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JENNIFER HILL,
on behalf of herself and all other
persons similarly situated,
Plaintiff,
v.
CASE NO.: 1:06-CV-00096-SPM-GRJ
THE HOOVER COMPANY and
HOOVER COMPANY, I,
Foreign Corporations doing business
in Alachua County, Florida,
Defendants.
___________________________/
ORDER GRANTING IN PART AND DENYING IN PART
THE MOTION TO DISMISS THE SECOND AMENDED COMPLAINT
THIS CAUSE comes for consideration upon Defendants’ Motion to Dismiss
Plaintiff’s Second Amended Class Action Complaint and Incorporated Memorandum
in Support (doc. 86) (“Motion to Dismiss”) pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The
plaintiff filed Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss
and Incorporated Memorandum of Law (doc. 91). For the reasons set forth below,
the Court grants the Defendants’ Motion to Dismiss in part and denies in part.
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I.
BACKGROUND FACTS
On or about December 21, 2003, Jennifer Hill (“Plaintiff”) purchased a brand
new Hoover Steam Vac™ Dual V™ Deep Cleaner (“Steam Vac”), which is
manufactured by The Hoover Company and Hoover Company I (together
“Defendants”), for her personal use from a Wal-Mart store in Gainesville, Florida.
(Pl.’s Compl. ¶ 15). At the time of the Plaintiff’s purchase, the Steam Vac was being
marketed for a retail price of over two-hundred dollars ($200). (Pl.’s Compl. ¶ 3).
The Plaintiff alleges that, unbeknownst to her, the Steam Vac was defective in
design, manufacture, and workmanship. (Pl.’s Compl. ¶ 16-17). As a result of
these defects, the Plaintiff’s Steam Vac failed to function properly, as “the clean
water tank was leaking water from the bottom valve, one of the plastic handles for
the tanks had broken, and one of the plastic cord hooks had broken.” (Pl.’s Compl.
¶ 26). Consequently, the Plaintiff delivered the Steam Vac to Authorized Appliance
and Tool Service (“Authorized Appliance”) within the warranty period for repairs.
(Pl.’s Compl. ¶ 26).
Newly purchased Steam Vacs manufactured by the Defendants come
standard with a warranty. The Defendants’ warranty explicitly states that, “Your
Hoover® appliance is warranted in normal household use, in accordance with the
Owner’s Manual against original defects in material and workmanship for a period
of one full year from date of purchase.” (Pl.’s Compl. ¶¶ 20-21). The Plaintiff
alleges that she complied with the terms of the Defendants’ warranty by (1)
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purchasing the Steam Vac from a Wal-Mart store; (2) delivering the faulty Steam
Vac to Authorized Appliance; (3) presenting proof of purchase to Authorized
Appliance; and (4) affording the Defendants an opportunity to repair, replace, or
refund the price of the Steam Vac within a reasonable time. (Pl.’s Compl. ¶ 29).
Upon delivery of the Steam Vac to Authorized Appliance for repairs, the
Plaintiff was informed that Authorized Appliance had received several Steam Vacs
with malfunctioning clean water tanks, and that the Defendants were allegedly
redesigning the clean water tank of the Steam Vac. (Pl.’s Compl. ¶ 26). Since the
clean water tank was on back order, Authorized Appliance was unable to complete
the repair of the Plaintiff’s Steam Vac for nine and one-half weeks. (Pl.’s Compl. ¶
27). As such, Authorized Appliance was unable to timely repair the Steam Vac prior
to the institution of the instant action.
In addition to the warranty described above, the Plaintiff alleges that the
Defendants made several other representations and warranties, whether express
or implied, which the Defendants failed to satisfy. (Pl.’s Compl. ¶¶ 22-31). The
Plaintiff specifically alleges that these representations and warranties include: (1)
that the Steam Vac was a dependable vacuum steam cleaner; (2) that the Steam
Vac was suitable for ordinary use; (3) that the Steam Vac was of good
workmanship, materials and design; and (4) that defects in the design of the Steam
Vac would be remedied and repaired in a timely and efficient manner. (Pl.’s Compl.
¶¶ 22-25).
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As a result of the aforementioned conduct, the Plaintiff brought the instant
action against the Defendants alleging (a) violation of the Florida Deceptive and
Unfair Trade Practices Act, Fla. Stat., §§ 501.201-213; (b) violation of the
Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.; (c) breach of express
warranty; (d) breach of implied representations and warranties; and (e) unjust
enrichment.1 The Defendants seek to dismiss all five causes of action for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
II.
STANDARD OF REVIEW
When reviewing a motion under Federal Rule of Civil Procedure 12(b)(6), the
Court looks to the plausibility standard as set forth in Twombly and Iqbal. See
generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556
U.S. 662 (2009). Pursuant to Federal Rule of Civil Procedure 8(a)(2), Plaintiff is
only required to plead “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Id. The purpose of Rule 8(a)(2) is to “‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Generally, the Court accepts a plaintiff’s allegations as true. Twombly, 550
U.S. at 555. Yet, any allegations which are merely legal conclusions are not entitled
1
The Plaintiff’s complaint is structured as a ten count complaint consisting
of five claims pleaded separately against The Hoover Company and Hoover
Company I. For the purposes of this Order, the ten counts are consolidated into
the five claims since the conduct of each defendant is the same for each claim.
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to an assumption of truth. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290
(11th Cir. 2010) (citing Iqbal, 556 U.S. at 678). After an initial identification of
factual allegations, the Court assumes the truth of the well-pleaded factual
allegations and determines if those allegations plausibly give rise to relief. Iqbal,
556 U.S. at 679. A complaint is adequate if it contains sufficient factual matter to
state a claim to relief that is plausible on its face.
Id.
Facial plausibility is
established when the Court can draw a reasonable inference from the factual
allegations that a defendant is liable for the misconduct alleged. Speaker v. U.S.
Dep’t of Health and Human Servs. Centers for Disease Control and Prevention, 623
F.3d 1371, 1380 (11th Cir. 2010) (citing Iqbal, 556 U.S. at 678).
III.
DISCUSSION
(a) Counts I-II: Florida Deceptive and Unfair Trade Practices Act
The Defendants argue that the Plaintiff’s claim under the Florida Deceptive
and Unfair Trade Practices Act (“FDUTPA”) should be dismissed on two grounds.
First, the Defendants argue that the Plaintiff’s allegations consist solely of
conclusions and formulaic recitations and thus do not meet the pleading standard
of Rule 8(a) as interpreted by Iqbal and Twombly. Second, the Defendants argue
that the Plaintiff has failed to plead with specificity her FDUTPA claim under the
heightened pleading standard of Rule 9(b). The Court will first address whether the
heightened pleading standard of Rule 9(b) applies to the Plaintiff’s claim, and then
address whether the Plaintiff has adequately pleaded her claim under the
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appropriate pleading standard.
(i) Applicability of Rule 9(b) to the Plaintiff’s FDUTPA claim.
The Defendants argue that the Plaintiff has failed to plead her FDUTPA claim
with the specificity required under the heightened pleading standard of Rule 9(b),
drawing analogy to the application of Rule 9(b) to a plaintiff’s FDUTPA claims in
Jovine v. Abbott Laboratories, Inc., 795 F. Supp. 2d 1331 (S.D. Fla. 2011). (Defs.’
Mot. to Dismiss 5-6). More specifically, the Defendants argue that the Plaintiff failed
to satisfy the heightened pleading standard of Rule 9(b) because the Plaintiff failed
to (1) identify any specific packaging or advertising materials, (2) quote any
allegedly false language, and (3) allege when or where the Plaintiff saw any
allegedly false advertisements. Id.
The Plaintiff argues that the heightened pleading standard of Rule 9(b) does
not apply to her FDUTPA claim because the Plaintiff is not alleging fraud as the
basis of her claim. The Plaintiff further argues that the Defendants inaccurately
portrayed the holding in the Jovine case as requiring all FDUTPA claims to satisfy
the heightened pleading standard of Rule 9(b). (Pl.’s Resp. 7).
The Court finds that the Defendants’ use of Jovine for the proposition that the
heightened pleading standard of Rule 9(b) should apply to the Plaintiff’s FDUTPA
claim is inapposite. In Jovine, the plaintiff’s FDUTPA claims were separated into
two categories: (1) those claims based on fraudulent conduct and (2) those claims
based on unfair or unlawful conduct. Jovine, 795 F. Supp. 2d at 1343-44. The
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court in Jovine applied Rule 9(b) to the those claims based on fraudulent conduct
and applied Rule 8(a) to those claims based on unfair or unlawful conduct. Id. As
discussed infra, the Plaintiff’s claim is based on unfair or unlawful conduct. As
such, the Jovine case cannot be used to support the proposition that all FDUTPA
claims, including the Plaintiff’s claim, must be pleaded with the specificity required
under Rule 9(b). Therefore, the Court finds that the Plaintiff must plead her claim
in accordance with the requirements of Rule 8(a).
(ii) Application of Rule 8(a) to the Plaintiff’s FDUTPA claim.
The Defendants argue that the Plaintiff’s FDUTPA claim consists solely of
conclusions and formulaic recitations, and thus such claim should be dismissed
since it does not meet the pleading standard of Rule 8(a), as interpreted by
Iqbal and Twombly. (Defs.’ Mot. to Dismiss 4). The Defendants argue that the
Plaintiff’s complaint “fails to state a cause of action because it does not adequately
allege with any particularity any deceptive act or practice, i.e., it fails to identify the
content of the allegedly false misrepresentations upon which the claim is based or
when and where the plaintiff saw them.” Id. The Plaintiff asserts that each element
of her FDUTPA claim is properly pleaded in the Plaintiff’s complaint in accordance
with the pleading standard of Rule 8(a). (Pl.’s Resp. 5-7).
The Florida Deceptive and Unfair Trade Practices Act makes unlawful
“[u]nfair methods of competition, unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of any trade or commerce . . . .” Fla. Stat.
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§ 501.204(1). The statute requires that Florida courts give “due consideration and
great weight . . . to the interpretations of the Federal Trade Commission and the
federal courts relating to § 5(a)(1) of the Federal Trade Commission Act . . . .” Fla.
Stat. § 501.204(2).
In order to state a claim under the FDUTPA, a plaintiff must plead the
following elements: (1) a deceptive act or unfair practice; (2) causation; and (3)
actual damages. Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d Dist. Ct. App.
2006); See also Virgilio v. Ryland Group, Inc., 680 F.3d 1329, n. 25 (11th Cir. 2012).
Thus, a plaintiff must allege the existence of a deceptive act or unfair practice in
order to satisfy the first element of a FDUTPA claim. Generally, the standard for
proving the existence of a deceptive act is different than the standard for proving an
unfair practice. Courts have found the existence of a deceptive act where there is
a “representation, omission, or practice that is likely to mislead the consumer acting
reasonably in the circumstances, to the consumer’s detriment.”
Millennium
Commc’ns & Fulfillment, Inc. v. Office of the Attorney Gen., 761 So. 2d 1256, 1263
(Fla. 3d Dist. Ct. App. 2000)(citing Southwest Sunsites, Inc. v. Federal Trade
Commission, 785 F. 2d 1431(9th Cir. 1986)). In contrast, courts have found the
existence of an unfair practice where such practice “offends established public
policy and . . . [where such] practice is immoral, unethical, oppressive, unscrupulous
or substantially injurious to consumers.” Samuels v. King Motor Co. of Fort
Lauderdale, 782 So. 2d 489, 499 (Fla. 4th Dist. Ct. App. 2001)(quoting Spiegel, Inc.
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v. F.T.C., 540 F. 2d 287, 293 (7th Cir. 1976)(internal quotations omitted).2
The Court finds that the Plaintiff has sufficiently pleaded the first element of
a FDUTPA claim. The Plaintiff alleges that the Defendants’ expressly and impliedly
represented that Hoover Steam Vacs were (a) dependable vacuum steam cleaners;
(b) suitable for ordinary use; and (c) of good workmanship, materials, and design,
and free of material defects. (Pl.’s Compl. ¶ 22-23). The Plaintiff further alleges
that these representations were false based on her actual experience since the
Steam Vac was defective and failed to perform properly. (Pl.’s Compl. ¶ 16-17).
Additionally, the Plaintiff alleges that Authorized Appliance was unable to repair the
Steam Vac for at least two months as the necessary parts manufactured by the
Defendants were on back order. (Pl.’s Compl. ¶ 27-28). Thus, assuming these
allegations are true, and taking those allegations in the light most favorable to the
Plaintiff, the Plaintiff has adequately pleaded that the Defendants engaged in an
unfair practice.
The Court also finds that the Plaintiff has sufficiently pleaded the second
element of a FDUTPA claim, causation. The Plaintiff specifically pleaded that the
Defendants “made these representations and warranties and caused plaintiff and
all other class members to purchase Hoover Steam Vacs.” (Pl.’s Compl. ¶ 22-23).
Thus, assuming these allegations are true, and taking those allegations in the light
2
The FTC’s criteria for determining whether a practice is unfair is
discussed further in Footnote 5 of the Supreme Court’s Decision in F.T.C. v.
Sperry & Hutchinson Co., 405 U.S. 233, 243, 92 S. Ct. 898, 905 (1972).
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most favorable to the Plaintiff, the Plaintiff has adequately pleaded causation.
Lastly, the Court finds that the Plaintiff has sufficiently pleaded the third
element of a FDUTPA claim, damages. The Plaintiff specifically pleaded that she
purchased a Steam Vac which was marketed for a retail price of more than twohundred dollars. (Pl.’s Compl. ¶ 3, 15). Additionally, as discussed supra, the
Plaintiff sufficiently pleaded that the Steam Vac malfunctioned and that the Plaintiff
was without its use for at least two months. (Pl.’s Compl. ¶ 16-17, 27-28). Thus,
assuming these allegations are true, and taking those allegations in the light most
favorable to the Plaintiff, the Plaintiff has adequately pleaded damages.
In sum, the Plaintiff has pleaded sufficient facts to support a claim for
violation of the FDUTPA and survive a Rule 12(b)(6) challenge. As such, the
Defendant’s motion to dismiss Counts I and II will be denied.
(b) Counts III-IV: Violation of Magnuson-Moss Warranty Act
The Defendants argue that Counts III and IV brought under the MagnusonMoss Warranty Act (“MMWA”) should be dismissed for two discrete reasons.
(Defs.’ Mot. to Dismiss 6). First, the Defendants argue that the Plaintiff failed to
allege that she provided notice to the Defendants of the alleged violation and an
opportunity to cure, both of which are statutory prerequisites to asserting a class
action lawsuit under the MMWA. Second, the Defendants argue that since the
MMWA does not provide the Plaintiff with an independent cause of action, but
rather, requires that the Plaintiff establish a valid state law warranty claim in order
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to bring forth an MMWA claim, the Court should dismiss the Plaintiff’s claim. In
support of this position, the Defendants argue that the Plaintiff’s state law warranty
claims (Counts V and VI) are barred due to lack of privity. (Defs.’ Mot. to Dismiss
7). Since resolution of the second ground for dismissal would render the first
ground moot, the Court will first address whether the Plaintiff’s claim under the
MMWA is barred due to lack of privity.
The Defendants argue that Florida courts uniformly hold that contractual
privity between the plaintiff and the defendant is required to maintain both breach
of express warranty claims and breach of implied warranty claims, citing Fields v.
Mylan Pharmaceuticals, Inc., 751 F. Supp. 2d 1257, 1259 (N.D. Fla. 2009); T.W.M.
v. American Medical Systems, Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995); and
O’Connor v. Kawasaki Motors Corp., U.S.A., 699 F. Supp. 1538, 1543-44 (S.D. Fla.
1988). Further, the Defendants argue that since the Plaintiff has failed to allege that
she purchased the Steam Vac directly from the Defendants, the Plaintiff has failed
to plead the requisite element of privity for a breach of express or implied warranty
action, and thus such an action should be dismissed.
In respect of the privity requirement, the Plaintiff responds by arguing that
privity is not required for her to bring forth a state law warranty claim. (Pl.’s Resp.
9-17). In particular, the Plaintiff argues that the plain language of Fla. Stat. §
672.313 does not require a plaintiff to plead privity in a breach of express warranty
claim, but rather, solely requires that a “consumer . . . allege and prove that the
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manufacturer did not comply with the express warranty’s terms.” (Pl.’s Resp. 1415). The Plaintiff also argues that the instant case is clearly distinguishable from
the holdings in T.W.M., Mylan Pharmaceuticals, and Kawasaki Motors. (Pl.’s Resp.
15). Further, the Plaintiff refers to previously decided case law where courts have
“expressly enforced written warranties in suits brought under the MMWA against
manufacturers where privity did not exist between the manufacturer and the
consumer.” (Pl.’s Resp. 16)(citing Rentas v. DaimlerChrysler Corp., 936 So. 2d
747, 751 (Fla. 4th Dist. Ct. App. 2006)). Lastly, the Plaintiff draws analogy to Smith
v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336 (S.D. Fla. 2009), for the proposition
that it makes logical sense to hold the manufacturer liable for a failure to comply
with the warranty. (Pl.’s Resp. 16-17).
The Magnuson-Moss Warranty Act establishes federal standards in respect
of both consumer implied warranties and written warranties.3 Under the terms of the
MMWA, the definition of an implied warranty explicitly incorporates state law4 and
3
The MMWA specifically defines the term written warranties, as
distinguished from the term express warranties. The court in Walsh explained
the difference in these terms as follows: “[An e]xpress warranty is defined in
state law; the term encompasses both written and oral undertakings. Congress
ultimately decided that oral warranties need not be covered in the federal
legislation unless and until they become more prevalent.” Walsh v. Ford Motor
Co., 807 F.2d 1000, 1015 (D.C.Cir. 1986)(internal quotations omitted). As such,
the MMWA only covers written express warranties, leaving oral express
warranties solely to state law.
4
The MMWA defines an implied warranty as follows: “[t]he term ‘implied
warranty’ means an implied warranty arising under State law . . . in connection
with the sale by a supplier of a consumer product.” 15 U.S.C. § 2301(7)
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thus, “state law governs the existence and basic meaning of implied warranties.”
Walsh v. Ford Motor Co., 807 F.2d 1000, 1011 (D.C. Cir. 1986). In respect of
written warranties, many courts disagree as to whether the MMWA provides a
claimant with an independent cause of action for written warranties, see e.g.,
Rentas v. DaimlerChrysler, 936 So. 2d 747 (Fla. 4th Dist. Ct. App. 2006); In re
McDonald’s French Fries Litigation, 503 F. Supp. 2d 953 (N.D. Ill. 2007), or whether
the MMWA calls for the application of state law absent an expressly prescribed
regulating rule. See Walsh v. Ford Motor Company, 807 F. 2d 1000 (D.C. Cir.
1986); Federick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190 (N.D. Ga.
2005); Schimmer v. Jaguar Cars, Inc., 384 F.3d 402 (7th Cir. 2004).
The Court finds the reasoning in Walsh persuasive, and thus interprets the
MMWA as borrowing state law causes of action for breach of both written and
implied warranties as a necessary condition for bringing forth an action under the
MMWA. As such, in order to state a claim under the MMWA, the Plaintiff must
adequately plead a cause of action for breach of written or implied warranties under
Florida law. As such, the Court must determine whether the Plaintiff has a state law
cause of action for breach of warranty.
Chapter 672, Florida Statutes, represents Florida’s version of Article 2
(Sales) of the Uniform Commercial Code. Pursuant to this chapter, express
warranties are created under the guidance of Florida Statutes § 672.313. In
(emphasis added)
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interpreting this section, Florida courts have required a plaintiff to be in privity with
a defendant in order to recover for breach of express or implied warranty. The court
in T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995)
described the privity requirement as follows:
The law of Florida is that to recover for the breach of a warranty,
either express or implied, the plaintiff must be in privity of contract
with the defendant. Kramer v. Piper Aircraft Corp., 520 So. 2d 37
(Fla. 1988); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976).
“Privity is required in order to recover damages from the seller of a
product for breach of express or implied warranties.” Intergraph Corp.
v. Stearman, 555 So. 2d 1282, 1283 (Fla. 2d DCA 1990). “A
warranty, whether express or implied, is fundamentally a contract. A
contract cause of action requires privity.” Elizabeth N. v. Riverside
Group, Inc., 585 So. 2d 376, 378 (Fla. 1st DCA 1991).
T.W.M., 886 F. Supp. at 844. A plaintiff who purchases a product, but does not buy
it directly from the defendant, is not considered to be in privity with that defendant.
T.W.M., 886 F. Supp. 842, 844 (N.D. Fla. 1995)(citing 1 White & Summers, Uniform
Commercial Code § 11-2, at 528 (3rd ed. 1988)).
This Court finds that the Plaintiff has failed to sufficiently plead privity of
contract with the Defendants, and thus cannot bring forth a cause of action for
breach of written warranty or breach of implied warranty under both Florida law and
the MMWA. The Plaintiff has failed to allege that she purchased the Steam Vac
directly from the Defendants, but rather, specifically alleged that she purchased the
Steam Vac from a third-party retailer. As prior mentioned, a plaintiff who purchases
a product, but does not buy it directly from the defendant, is not in privity with that
defendant. As such, a claim for breach of warranty cannot proceed as the Plaintiff
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is unable to sufficiently allege privity.
The Plaintiff’s reliance on Rentas v. DaimlerChrystler and Mesa v. BMW of
N. Am. for the proposition that Florida courts enforce breach of warranty claims in
the absence of privity is inapposite. Each of the cases cited enforced a claim for
breach of written warranty in the absence of privity on the basis of an independent
cause of action under the MMWA. Since this Court determined, supra, that the
MMWA only borrows state law causes of action, such cases are rendered
unpersuasive because Florida law requires privity of contract in order to bring forth
a breach of written warranty claim. Further, the Court finds Plaintiff’s analogy to
Smith v. Wm. Wrigley Jr. Co., 663 F.Supp. 2d 1336 (S.D. Fla. 2009) unpersuasive.
The analysis in Wrigley relied in large part on the Rentas and Mesa cases, which
themselves were based on an independent cause of action under the MMWA.
Having already discussed supra that these cases are at odds with the Court’s view
of the MMWA, the Court finds the Wrigley case unpersuasive.
In sum, the Plaintiff has failed to plead that she was in privity with the
Defendants, and thus cannot bring forth a claim for breach of express or implied
warranties under Florida law. As such, the Defendant’s motion to dismiss Counts
III and IV will be granted.
(c) Counts V-VI: Breach of Express Warranty
As discussed supra, the Plaintiff has failed to plead that she was in privity of
contract with the Defendants, and thus cannot bring forth her claim for breach of
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express warranty. As such, Defendants’ motion to dismiss Counts V and VI will be
granted.
(d) Counts VII-VIII: Breach of Implied Representations and Warranties
As discussed supra, the Plaintiff has failed to plead that she was in privity of
contract with the Defendants, and thus cannot bring forth her claim for breach of
implied warranties. As such, Defendant’s motion to dismiss Counts VII and VIII will
be granted.
(e) Counts IX-X: Unjust Enrichment
The Defendants argue that Counts IX and X should be dismissed primarily
on the grounds that the Plaintiff failed to clearly disclaim the existence of other
possible legal remedies. (Defs.’ Mot. to Dismiss 13). The Defendants argue that
since unjust enrichment is an equitable remedy, it is unavailable where there is an
adequate legal remedy. (Defs.’ Mot. to Dismiss 13-14). The Defendants cite
Nichols v. Wm. Wrigley Jr. Co., Case No. 10-80759-CIV, 2011 WL 181458 (S.D.
Fla. Jan. 19, 2011) and Gary v. D. Agustini & Asociados, S.A., 865 F. Supp. 818
(S.D. Fla. 1994) as examples of cases where the courts dismissed an unjust
enrichment claim on the grounds that the plaintiff failed to clearly allege that no
adequate legal remedy existed. (Defs.’ Mot. to Dismiss 13-16). In particular, the
Defendants argue that the Plaintiff’s failure to acknowledge or otherwise allege the
inadequacy of an action against Wal-Mart precludes her from bringing an unjust
enrichment action against the Defendants. (Defs.’ Mot. to Dismiss 15-16).
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The Plaintiff responds by arguing that Federal Rule of Civil Procedure 8(a)(3)
allows her to plead for relief in the alternative, and that she complied with Rule
8(a)(3) by pleading her claim for unjust enrichment in the alternative. (Pl.’s Resp.
17). The Plaintiff further argues that the Motion to Dismiss is misguided in that the
Defendants argue on the merits of the unjust enrichment claim rather than whether
it was adequately pleaded. (Pl.’s Resp. 18). Additionally, the Plaintiff argues that
the Gary and Nichols cases, as cited by the Defendants, are inapplicable to the
facts at hand. Lastly, the Plaintiff relies on ThunderWave, Inc. v. Carnival Corp.,
954 F. Supp. 1562, 1566 (S.D. Fla. 1997) for the proposition that the Defendants’
denial of the existence of an express contract with the Plaintiff in the Motion to
Dismiss is enough to make the Plaintiff’s claim for unjust enrichment plausible and
therefore appropriately pleaded in the alternative. (Pl.’s Resp. 19).
In order to establish a cause of action for unjust enrichment, a plaintiff must
show that “1) the plaintiff has conferred a benefit on the defendant; 2) the defendant
has knowledge of the benefit; 3) the defendant has accepted or retained the benefit
conferred; and 4) the circumstances are such that it would be inequitable for the
defendant to retain the benefit without paying fair value for it.” Resnick v. AvMed,
Inc., 2012 WL 3833035 at *8 (11th Cir. 2012)(quoting Della Ratta v. Della Ratta,
927 So.2d 1055, 1059 (Fla. 4th Dist. Ct. App.2006)). Various courts disagree as to
whether the existence of an adequate legal remedy precludes a plaintiff from
pleading a cause of action for unjust enrichment. See e.g., Nichols v. Wm. Wrigley
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Jr. Co., Case No. 10-80759-CIV, 2011 WL 181458 (S.D. Fla. Jan. 19, 2011) and
Gary v. D. Agustini & Asociados, S.A., 865 F. Supp. 818 (S.D. Fla. 1994). However,
the United States Court of Appeals for the Eleventh Circuit addressed this issue in
State Farm Mutual Automobile Insurance Company v. Physicians Injury Care
Center, Inc., 427 Fed. Appx. 714, 2011 WL 1988551 (11th Cir. 2011) as follows:
It is generally true that equitable remedies are not available under
Florida law when adequate legal remedies exist. Williams v. Bear
Stearns & Co., 725 So. 2d 397, 400 (Fla. 5th DCA 1998). However,
that rule does not apply to unjust enrichment claims. Id. “It is only
upon a showing that an express contract exists [between the parties]
that the unjust enrichment . . . count fails.” Id. Thus, to the extent
that [the plaintiff] did have adequate legal remedies, those remedies
did not bar its unjust enrichment claim.
Id. at 722. As such, the existence of an adequate legal remedy does not preclude
the Plaintiff from pleading unjust enrichment in the alternative.
The Court finds that the Plaintiff has sufficiently pleaded her claim for unjust
enrichment as a remedy in the alternative. The Plaintiff has sufficiently alleged that
she has conferred a benefit upon the Defendants by purchasing the Steam Vac
manufactured by the Defendants for a retail price of over two-hundred dollars. (Pl.’s
Compl. ¶¶ 3, 15, 97, 105).
Further, it is plausible that the Defendants had
knowledge of the benefit and appreciated the benefit conferred by the Plaintiff since
the Defendants were engaged in the business of designing, manufacturing,
marketing, distributing, and selling the Steam Vac. (Pl.’s Compl. ¶¶ 10,11). Lastly,
given the fact that the Steam Vac did not meet the standards of craftsmanship
expected by the Plaintiff coupled with the fact that the Defendants failed to provide
Case No.: 1:06-CV-00096-SPM-GRJ
Page 19 of 19
adequate warranty service as promised, the Plaintiff has sufficiently alleged that the
Defendants retained the benefit under circumstances that would be considered
inequitable. (Pl.’s Compl. ¶¶ 99-100, 107-8). Thus, assuming these allegations are
true, and taking those allegations in the light most favorable to the Plaintiff, the
Plaintiff has adequately pleaded each element of an unjust enrichment claim.
In sum, the Plaintiff has pleaded sufficient facts to support a claim for unjust
enrichment and survive a Rule 12(b)(6) challenge. As such, the Defendant’s motion
to dismiss Counts IX and X will be denied.
Accordingly, it is:
ORDERED AND ADJUDGED as follows:
1.
Defendant’s motion to dismiss (doc. 86) is granted with respect to
Counts III, IV, V, VI, VII, and VIII with prejudice.
2.
Defendant’s motion to dismiss (doc. 86) is denied with respect to
Counts I, II, IX, and X.
DONE AND ORDERED this 1st day of October, 2012.
S/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge
Case No.: 1:06-CV-00096-SPM-GRJ
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