Twin Oil Company, et al v. Total Containment, et al

Filing 670

ORDER granting in part and denying in part 456 Motion for Summary Judgment; adopting in part 629 Report and Recommendations.. Signed by Judge Joan A. Lenard on 12/30/08. (lc1)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 06-20953-CIV-LENARD/TORRES C IT Y OF ST. PETERSBURG, a Florida m u n icip a lity; TWIN OIL COMPANY, a Florida corpo ration; and JE F F M O N T G O M E R Y ASSOCIATES, a sole p ro p rie to r in the State of Florida, on behalf o f themselves and all other Florida re s id e n ts similarly situated, Plaintiffs, vs. D A Y C O PRODUCTS, INC. AND D A Y C O PRODUCTS, LLC, et al., Defendants. _______________ _ __________________/ O R D E R ADOPTING IN PART REPORT AND RECOMMENDATION (D.E. 629) O N THE MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANTS DAYCO PRODUCTS, INC. AND DAYCO PRODUCTS, LLC (D.E. 456) T H I S CAUSE is before the Court on the Report and Recommendation on Dayco P ro d u c ts, Inc.'s and Dayco Products, LLC's Motion for Partial Summary Judgment, is s u e d by U.S. Magistrate Judge Edwin G. Torres on October 9, 2008 ("Report," D.E. 6 2 9 ). On October 27, 2008, Plaintiffs City of St. Petersburg ("St Petersburg"), Twin Oil C o m p a n y ("Twin Oil"), and Jeff Montgomery Associates ("JMA") (collectively, " P la in tif f s" ) filed a Motion and Memorandum to Reconsider Report and R e c o m m e n d a tio n , and in the Alternative, an Objection to the Report and R e c o m m e n d a tio n on Dayco Products, Inc.'s and Dayco Products, LLC's Motion for

P artial Summary Judgment, which this Court construes as objections to the Report (" O b je c tio n s ," D.E. 638).1 On November 7, 2008, Defendants Dayco Products, Inc. and D a yc o Products, LLC (collectively, the "Dayco Defendants") filed their response to P la in tif f s' Objections ("Response," D.E. 643). Having reviewed the Report, the O b j e c tio n s , and the Response, the Court finds as follows: I. G e n e r a l Background

A s described in the Report, this case involves thermoplastic flexible piping (" F le x P ip e " ) marketed and distributed by Defendant Total Containment, Inc. ("TCI") for u s e in underground fuel containment systems, to enable petroleum fuels to be pumped fro m underground storage tanks to above-ground fuel dispensers. (D.E. 629 at 2.) Plaintiffs purchased and installed, or otherwise used, FlexPipe at their fuel dispensing f a c iliti e s and retail gasoline stations. (Id.) A s further noted in the Report, from 1990 to 1997, TCI contracted with the Dayco D e f en d a n ts to manufacture the primary pipe, which transfers fuel and which is fed into a se c o n d a ry containment pipe. (Id. at 3.) The Dayco Defendants in turn contracted with D e f en d a n t Cleveland Tubing, Inc. ("Cleveland Tubing") to manufacture the inner layer of the primary pipe, which is always in direct contact with the fuel. (Id.) In 1997, TCI's a g re e m e n t with the Dayco Defendants ended, and TCI then contracted directly with

See 28 U.S.C. Section 636(b)(C); see also Rule 4(b) of the Magistrate Judge R u le s of the Southern District of Florida. 2

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C le v e la n d Tubing to manufacture both the primary and secondary pipes. (Id.) In 1999, T C I alone manufactured both the primary and secondary pipes. (Id.) P la in tif f s allege, inter alia, that the Dayco Defendants negligently designed the F le x P ip e primary pipe, and withheld from regulators, industry standard organizations, and th e consuming public significant problems with the design and manufacturing techniques u s e d to make the product. (Id. at 4.) Based on these and additional allegations, Plaintiffs asse rt four claims against the Dayco Defendants. (Id.) On February 7, 2008, the Dayco Defendants filed a Motion for Partial Summary J u d g m e n t (see D.E. 456; see also D.E. 457, 458), seeking summary judgment on various is s u e s, each of which are addressed in the Report, and each of which are dealt with below in light of the Report, the Objections, and the Response. II. A n a ly sis 1. S ta tu te of Limitations

T h e Dayco Defendants first argue that Plaintiffs' claims against them are barred by F lo rid a 's four-year statute of limitations. (See D.E. 458 at 2-4.) More specifically, as n o te d in the Report, the Dayco Defendants argue that all of Plaintiffs' claims must have a c cru e d on or after April 12, 2002 to survive a statute of limitations challenge, but b e c a u se Twin Oil and JMA had actual knowledge of the problems from which their c la im s arise before that date, their claims are time-barred. (D.E. 629 at 6.) In addition, th e Dayco Defendants argue that St. Petersburg's claims are barred by Florida's twelve-

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ye a r statute of repose. (Id.) Plaintiffs, in turn, argue that all of their claims are tolled u n d e r American Pipe and Constr. Co. v. Utah, 414 U.S. 538 (1974) by the pendency of M a y's Distribution Co., Inc. v. Total Containment, Inc., a putative nationwide class action f ile d in the Circuit Court for Bullock County, Alabama, on January 3, 2003, in which tho se plaintiffs allege the same claims as in this case. (Id.) i. F o u r -Y e a r Statute of Limitations

F ir st, with respect to the four-year statute of limitations, the Report concludes, a f te r an extensive analysis, that tolling under American Pipe applies in this case to Dayco P r o d u c ts , Inc.,2 but not to Dayco Products, LLC, because Dayco Products, LLC was never n a m e d as a defendant in the class action filed in Alabama state court. (Id. at 6-11.) The R e p o rt concludes that American Pipe tolling does not apply to a defendant who was not n a m e d in the initial class action lawsuit where, as here, there is no allegation of a " p a re n tal" relationship or corporate control between the entity named in the initial lawsuit a n d the entity who was not named in the initial lawsuit; thus, all claims against Dayco P rod u cts, LLC in this case must have accrued on or after April 12, 2002, four years b ef o re the present lawsuit was filed in this Court. (Id. at 9-12.) Nonetheless, the Report r e a so n s that because Dayco Products, Inc. was added as a defendant in the Alabama case u p o n the filing of an amended complaint on July 1, 2003, tolling commenced pursuant to

Neither party objects to the Report's finding that American Pipe tolling applies to Dayco Products, Inc., and for the reasons described in the Report, the Court finds that Dayco Products, Inc. is not entitled to summary judgment on the ground that Plaintiffs' claims against it are time-barred by the applicable four-year statute of limitations. 4

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A m e ric a n Pipe on that date with respect to claims against Dayco Products, Inc. (Id. at 1 1 .) In their Objections, Plaintiffs argue that the Report erroneously recommends that A m e ric a n Pipe tolling does not apply to Dayco Products, LLC, because it is the same e n t ity as Dayco Products, Inc., which was named in the May's litigation, and because D a yc o Products, LLC did not seek summary judgment on the grounds that it is an entity d istin c t from Dayco Products, Inc. (See D.E. 638 at 7-8.) Moreover, Plaintiffs accurately n o te that the Dayco Defendants actually refer to themselves as one entity in their own s ta te m e n t of facts filed in support of their motion for summary judgment, although, as a ls o noted by Plaintiffs, the Dayco Defendants do mention that Dayco Products, LLC was n o t named in the May's action in a footnote contained within their memorandum of law. (See id. at 8; see also D.E. 457 ¶¶ 8-10; D.E. 458 at 3 n.1.) Having reviewed the record before it, the Court finds that Dayco Products, LLC h a s not met their burden on summary judgment of establishing that American Pipe tolling d o e s not apply to Dayco Products, LLC. As Plaintiffs note, the sole footnote referencing th is issue merely states that Dayco Products, LLC was never named as a defendant in the M a ys ' action; this is an insufficient basis on which to find that American Pipe tolling d o e s not apply to Dayco Products, LLC. See, e.g., Keener v. Convergys Corp., 342 F.3d 1 2 6 4 , 1270 (11th Cir. 2003) (concluding that a single reference in a footnote was in su f f icie n t to support summary judgment absent a proffer of a legal or factual basis in

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p le a d in g s , and that "it was incumbent upon" the defendant to demonstrate first the legal a n d factual bases supporting summary judgment). In any event, as noted above, the D a yc o Defendants do refer to themselves as a single entity in their statement of facts, w h ic h , along with evidence provided by Plaintiffs, creates a genuine issue of material fact a s to whether Dayco Products, Inc. and Dayco Products LLC are in fact the same entity f o r tolling purposes. (See, e.g., D.E. 638-2.) Accordingly, the Report is overruled as to th is issue, and summary judgment on the grounds that American Pipe tolling does not a p p ly to Plaintiffs' claims against Dayco Products, LLC is denied. ii. F lo r i d a ' s Statute of Repose and St. Petersburg's Claims

The Report concludes that the Dayco Defendants are not entitled to summary ju d g m e n t on St. Peterburg's claims regarding its Fleet West facility on the basis of S e c tio n 95.031(2)(b) of the Florida Statutes, which "bars product liability actions if the h a rm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser . . . . all products [with certain exceptions]. . . are c o n c lu s iv e ly presumed to have an expected useful life of 10 years or less." (D.E. 629 at 1 9 -2 0 (citing Fla. Stat. § 95.031(2)(b).) As noted in the Report, the statute creates an e x c e p tio n for certain products "which the manufacturer specifically warranted, through e x p re s s representation or labeling, as having an expected useful life exceeding 10 years," a n d provides that such products have "an expected useful life commensurate with the tim e period indicated by the warranty or label." (Id. (citing Fla. Stat. § 95.031(2)(b)(2).)

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W ith respect to such products, the statute further provides that "no action for products lia b ility may be brought after the expected useful life of the product, or more than 12 ye a rs after delivery of the product to its first purchases . . . whichever is later." (Id. (citing Fla. Stat. § 95.031(2)(b)(2).) The Report concludes that because facts in evidence support Plaintiffs' claim that F le x P ip e was supposed to last at least 20 years, a question of fact exists as to whether F le x P ip e ' s expected useful life was warranted to be more than ten years, in which case th e 12-year statute of repose would not apply. (Id. at 20.) Neither party objects to this fin d ing , and upon an independent review of the record, the Court concludes that summary ju d g m e n t on the basis that the statute of repose bars St. Petersburg's claims is denied. 2. D e fe c ts or Failures at St. Petersburg's and JMA's Stations

T h e Dayco Defendants next assert that all claims by St. Petersburg should be d is m is s e d because there is no evidence of any defects, failures, or leaks of Dayco F le x P ip e at its municipal fueling station; similarly, they assert that all claims by JMA s h o u ld be dismissed because JMA admitted that Dayco FlexPipe installed at his station d id not fail or leak. (See D.E. 458 at 5-10.) With regard to the negligence and strict p ro d u c ts liability claims brought by St. Petersburg and JMA against the Dayco D e f e n d a n ts , the Report concludes that such claims are barred by summary judgment. (See D.E. 629 at 20-27.) As noted in the Report, Plaintiffs do not dispute that the Dayco D e f en d a n ts did not manufacture any of the allegedly leaking hose at the subject locations

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o w n e d by either St. Petersburg or JMA. (Id. at 21.) The Report further notes that TCI a lte re d the design and construction of the primary hose after its supply agreement with the D ayco Defendants ended. (Id. at 24.) After an extensive legal analysis, the Report c o n c lu d e s that Florida law requires a plaintiff in a products liability action to prove that th e manufacturer defendant produced the product that allegedly caused the injury, and th a t, because St. Petersburg and JMA have failed to show that their claims are based on h o s e that the Dayco Defendants designed or manufactured, they cannot be held liable for S t. Petersburg's and JMA's negligence and strict products liability claims; as such, the R e p o rt recommends that the Dayco Defendants are thus entitled to summary judgment on s u c h claims. (Id. at 21-26.)3 P la in tif f s do not object to the Report's legal analysis on this issue, and further co n ce d e that Dayco pipe was never installed at JMA's facilities, nor at St. Petersburg's E a s t and West gasoline facilities. (See D.E. 638 at 10-11.) In any event, after its own in d e p e n d en t review of the record, the Court adopts the Report's factual findings and legal co n clus ion s as to Plaintiffs' negligence and strict liability claims regarding JMA's f a c ilities and regarding St. Petersburg's East and West gasoline facilities, and grants

In addition, the Report recommends that summary judgment be granted on Twin Oil's negligence and strict liability claims against the Dayco Defendants that relate to Twin Oil's NMB station, because Plaintiffs have clarified that Twin Oil is not making such claims for damage to Dayco-designed or manufactured hose at that station. (D.E. 629 at 26-27.) Plaintiffs do not object to this finding, and the Court hereby adopts such finding and concludes that summary judgment is granted in favor of the Dayco Defendants on any negligence or strict liability claim by Twin Oil relating to its NMB station. 8

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s u m m a r y judgment to the Dayco Defendants on these claims. P lain tiff s do object, however, to the Report's finding that the Dayco Defendants a re entitled to summary judgment as to St. Petersburg's negligence and strict liability c la im s regarding its West Side Diesel line. (See D.E. 638 at 10-11.) Plaintiffs argue that th e Dayco Defendants are not entitled to summary judgment on this particular issue b e c a u se evidence in the record shows that Dacyo-manufactured pipe was previously in s ta lle d at the West Side Diesel site in 1993. (Id. at 10.) Nonetheless, Plaintiffs concede th a t such pipe was replaced after installation, and that when the allegedly defective pipe w a s removed from St. Peterburg's diesel line, it was not Dayco-manufactured pipe. (Id. a t 11.) Moreover, as the Dayco Defendants note in their motion for summary judgment, P la in tif f s have failed to adduce any evidence that the primary hose in the TCI system at S t. Petersburg's West Side Diesel site ever leaked or was defective. Because, as noted by th e Report, Florida law requires Plaintiffs to prove that the Dayco Defendants produced th e product that allegedly caused the injury, and because Plaintiffs have not pointed to a n y evidence in the record indicating that St. Petersburg may have suffered injury as a re su lt of Dayco pipe installed at the West Side Diesel site, rather than as a result of the p ip e that was actually removed from the facility (and which Plaintiffs concede was not D a yc o -m a n u f a c tu re d pipe), the Court concludes that the Dayco Defendants are entitled to su m m a ry judgment on Plaintiffs' negligence and strict products liability claims as to St. P e te rs b u rg 's West Side Diesel facility as well.

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3.

O m n ifle x , Monoflex, and PP1502 Hose Products Claims

T h e Dayco Defendants seek summary judgment on Plaintiffs' claims regarding the D a yc o Defendants' Omniflex, Monoflex, and PP1502 hose products for lack of standing. (See D.E. 458 at 10-11.) Plaintiffs argue against summary judgment on the ground that F le x P ip e , which was installed or used by Plaintiffs in their respective stations, suffered f ro m the same "uniform defect" as the Omniflex, Monoflex, and PP1502 products, and, th u s , according to Plaintiffs, they should be able to proceed on claims stemming from the O m n iflex , Monoflex, and PP1502 products as well. (See D.E. 505 at 8-9.) After an analysis of the applicable law on standing, the Report concludes that P la in tif f s lack standing to assert claims relating to the Omniflex, Monoflex, and PP1502 p ro d u c ts because it is undisputed that Plaintiffs did not have these products at their s ta tio n s ; as a result, the Report also concludes that Plaintiffs lack standing to represent p u ta tiv e class members with potential claims as to these particular models of hoses. (D.E. 6 2 9 at 26-29.) The Report therefore recommends that summary judgment be granted in f a v o r of the Dayco Defendants as to all of Plaintiffs' claims regarding the Omniflex, M o n o f l e x , and PP1502 products. (Id. at 29.) P la in tif f s do not object to the Report's conclusion that JMA lacks standing re g a rd in g the Omniflex, Monoflex, and PP1502 products, but they do object to the R e p o rt's findings on the issue of standing with regard to Twin Oil and St. Petersburg. More specifically, Plaintiffs argue that the Magistrate Judge "conflates Article III

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stan d ing with the procedural requirements of [Federal Rule of Civil Procedure 23(a)]" w ith respect to Twin Oil and St. Petersburg. (D.E. 638 at 7.) The Court has in d e p e n d en tly reviewed Plaintiffs' argument in conjunction with the applicable law and th e Report, and, contrary to Plaintiffs' argument, does not find that the Magistrate Judge h a s "conflate[d]" Article III standing with the requirements for certifying a class action u n d e r Federal Rule of Civil Procedure 23(a). Moreover, for the reasons stated by the M a g istra te Judge in the Report, the undersigned is not persuaded by Plaintiffs' legally u n s u p p o rte d "uniform defect" theory. (See D.E. 505 at 8; see also D.E. 629 at 27-28.) P la in t if f s do not dispute that Dayco-manufactured Omniflex, Monoflex, or PP1502 hose w a s never installed or used in their respective stations, and Plaintiffs further concede that th e only Dayco-manufactured product used or installed by Plaintiffs was FlexPipe. For a ll of these reasons and as further described by the Magistrate Judge in the Report, the C o u rt finds that Plaintiffs lack standing to assert claims against the Dayco Defendants re g a rd in g the Omniflex, Monoflex, and PP1502 products, and similarly lack standing to a ss e rt such claims on behalf of a class. Accordingly, the Court concludes that the Dayco D e f en d a n ts are entitled to summary judgment on Plaintiffs' claims regarding the O m n i f le x , Monoflex, and PP1502 products. 4. E c o n o m ic Loss Rule

T h e Dayco Defendants next argue that Plaintiffs are barred under Florida's e c o n o m ic loss doctrine from bringing tort claims for economic damages against

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D e f en d a n ts for alleged damage to TCI's systems or their component parts. (See D.E. 458 a t 11-13). The Report recommends that summary judgment should be granted in part and d e n ie d in part with respect to these claims. (See D.E. 629 at 29-36.) Neither Plaintiffs n o r the Dayco Defendants object to these findings, and the Court finds, after an in d e p e n d en t review of the record, that the record and the relevant law supports the R e p o rt's recommendations. Accordingly, the Court adopts the findings of the Magistrate J u d g e as described in the Report with respect to the economic loss doctrine. 5. T w in Oil's Standing: Miramar and Hialeah Stations

T h e Dayco Defendants also seek summary judgment on any claims by Twin Oil as to the Miramar and Hialeah stations for lack of standing, because, according to the Dayco D ef en d an ts , Twin Oil does not own these properties. After a detailed analysis, the Report c o n c lu d e s that Twin Oil meets the "real party in interest" test as to the Miramar and H ia le a h sites, and thus recommends that summary judgment be denied as to the Dayco D e f en d a n ts ' argument that Plaintiff Twin Oil lacks standing to assert any claims for the M ira m a r and Hialeah stations because it does not own these properties. (See Report at 3 6 -4 0 .) Neither Plaintiffs nor the Dayco Defendants object to these findings, and the C o u rt finds, after an independent review of the record, that the record and the relevant la w supports the Report's recommendations on this issue. Accordingly, for the reasons d e sc rib e d in the Report, the Court adopts the findings of the Magistrate Judge that Twin O il has standing as to claims regarding the Miramar and Hialeah stations, and denies

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s u m m a ry judgment on Twin Oil's claims against the Dayco Defendants relating to the M ir a m a r and Hialeah stations. 6. N e g l ig e n t Misrepresentation, Concealment, and Unjust E n r ic h m e n t Claims

N e x t, the Dayco Defendants argue that because Plaintiffs cannot prove one or m o r e elements of their claim for negligent misrepresentation, concealment, or unjust e n ric h m e n t, these claims should be dismissed on summary judgment. (See D.E. 458 at 1 5 -1 6 .) More specifically, the Dayco Defendants argue that there is no evidence of any o ra l or written communication between Plaintiffs and the Dayco Defendants in this case, a n d further argue that the Dayco Defendants had no contact with TCI customers and did n o t know who purchased the TCI system. (Id. at 16.) As such, the Dayco Defendants a ss e rt that they did not make a representation or misrepresentation to Plaintiffs, did not c o n c ea l anything from Plaintiffs, and could not have induced Plaintiffs to rely on a re p re s e n ta tio n or misrepresentation absent contact with Plaintiffs. (Id.) P la in tif f s first argue that privity is not required for their negligent m isrep rese n tatio n /co n ce alm en t or unjust enrichment claims. (D.E. 505 at 15-16.) Instead, Plaintiffs argue that Section 552 of the Restatement (Second) of Torts ("Section 5 5 2 " ), which provides that a party who negligently supplies false information in the c o u rse of its business or any other transaction in which it has a pecuniary interest is liable to a party harmed by that false information, applies in this case, and precludes summary ju d g m e n t. (Id.) In addition, Plaintiffs argue that they need not establish that the Dayco 13

D e f en d a n ts had a duty to disclose its involvement in manufacturing FlexPipe to prove th e ir negligent misrepresentation claim, and that they have otherwise satisfied all the e le m e n ts of their negligent misrepresentation/concealment and unjust enrichment claims. (Id.) A f te r an extensive legal analysis, the Report concludes that summary judgment a g a in s t Plaintiffs is warranted on their negligent misrepresentation/concealment claim. (D.E. 629 at 40-45.) In reaching this conclusion, the Report first describes the elements o f a negligent misrepresentation and inducement claim. (See id. at 40 (noting that a p la in tif f must prove (1) a misrepresentation of a material fact; (2) that the representor m a d e the representation without knowledge as to its truth or falsity or under c irc u m s ta n c es in which he ought to have known of its falsity; (3) that the representor inten d ed that the misrepresentation induce another to act on it; and (4) that the injury re su lte d to the party acting in justifiable reliance on the misrepresentation; and further n o tin g that the elements for an inducement claim are similar (citations omitted).) Next, a f ter an extensive legal analysis, the Report concludes that Section 552 is not applicable in this case. (Id. at 41-45.) The Report then concludes that Plaintiffs have failed to e sta b lis h that they justifiably relied on any representations by the Dayco Defendants or th a t the Dayco Defendants concealed material facts on which Plaintiffs relied to their d e trim e n t. (Id. at 45.) In reaching this conclusion, the Magistrate Judge notes the u n d is p u te d fact that Plaintiffs had no dealings with the Dayco Defendants or even knew

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o f their existence prior to this litigation. (Id. at 45.) The Magistrate Judge also concludes th a t Plaintiffs have not presented evidence that the Dayco Defendants knew or had reason to believe that any alleged misrepresentations made by TCI would in turn be transmitted to Plaintiffs or similar persons, and that such information would be relied on by Plaintiffs o r others in business-making decisions. (Id.) For these reasons, the Magistrate Judge re c o m m e n d s summary judgment for the Dayco Defendants on Plaintiffs' negligent m is re p re s e n ta tio n /c o n c e a lm e n t claim. (Id.) P la in tif f s object to the Report's conclusions regarding Plaintiffs' negligent m isrep rese n tatio n claim on several grounds. First, Plaintiffs assert that the Report "ign o res that [the Dayco Defendants'] liability to the named Plaintiffs is based on [their] f a ilu re to disclose material facts." (D.E. 638 at 14.) Second, Plaintiffs reiterate their a rg u m e n t that Section 552 is applicable in this case. (Id. at 16.) Third, Plaintiffs contend th a t the Magistrate Judge "wrongly suggested that [Plaintiffs'] negligent m is re p re se n ta tio n claim fails because [Plaintiffs] did not have `dealings' with [the Dayco D e f en d a n ts ]." (Id.) Lastly, Plaintiffs argue that the Magistrate Judge erred in concluding th a t Plaintiffs could not have justifiably relied on the Dayco Defendants' material o m is s io n s as Plaintiffs had not known of their existence prior to this litigation; according to Plaintiffs, "[i]t is axiomatic that if [the Dayco Defendants] had informed TCI c u sto m e rs about the defective nature of FlexPipe, the named Plaintiffs would have p rev iou sly heard of [the Dayco Defendants]." (Id.)

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T h e Court has independently reviewed the law and the facts of this case in light of P la in tif f s' objections, and finds that, despite Plaintiffs' arguments to the contrary, the lack o f privity between the Dayco Defendants and Plaintiffs in this particular case precludes P lain tiff s' negligent misrepresentation/concealment claim. As described in the Report's e x te n siv e legal analysis on Section 552, and based on this Court's own review of the c a s e s cited therein, the Court does not find that Section 552 is applicable in this case. Further, Plaintiffs have failed to present any evidence of prior dealings with the Dayco D e f en d a n ts , including evidence of any oral or written communication between Plaintiffs a n d the Dayco Defendants. Plaintiffs have also failed to point to any evidence that the D a yc o Defendants had any contact with TCI customers or that the Dayco Defendants k n e w who purchased the TCI system. Under these circumstances, Plaintiffs cannot e sta b lis h that the Dayco Defendants intended that any alleged misrepresentation induced P la in tif f s to act, or that Plaintiffs justifiably relied on any alleged misrepresentation made b y the Dayco Defendants. Moreover, Plaintiffs have not otherwise raised a genuine issue o f material fact which would preclude summary judgment on their negligent m isre p re se n tatio n /co n c e a lm e n t claim. As such, the Dayco Defendants are entitled to s u m m a ry judgment on Plaintiffs' negligent misrepresentation/concealment claim. The Report also recommends dismissal of Plaintiffs' unjust enrichment claim on s u m m a ry judgment, which Plaintiffs object to on several grounds. (See D.E. 629 at 46; s e e also D.E. 638 at 17-22.) The Court has independently reviewed the record and the

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la w in light of Plaintiffs' objections and, find that, as with Plaintiffs' negligent m isre p re se n tatio n /co n c e a lm e n t claim, Plaintiffs' contention that the Dayco Defendants m a y be held liable under a theory of unjust enrichment is untenable where, as here, it is u n d is p u te d that Plaintiffs had no dealing with the Dayco Defendants or even knew of th e ir existence until after this litigation ensued; Plaintiffs have failed to present any e v id e n c e of prior dealings with the Dayco Defendants, including evidence of any oral or w ritte n communication between Plaintiffs and the Dayco Defendants; and Plaintiffs have a ls o failed to point to any evidence that the Dayco Defendants had any contact with TCI c u sto m e rs or that the Dayco Defendants knew who purchased the TCI system. Under th e se undisputed circumstances, Plaintiffs cannot establish the Dayco Defendants k n o w in g ly and voluntarily accepted any benefits conferred upon them by Plaintiffs as r e q u ir e d to state a claim for unjust enrichment under Florida law. Plaintiffs' unjust e n ric h m e n t claim is therefore dismissed, and summary judgment is granted in the Dayco D e f e n d a n ts ' favor on this claim. 7. P u n itiv e Damages

T h e Dayco Defendants next argue that "[a]ll punitive damage claims by Plaintiffs a g a in s t the Dayco Defendants should be dismissed for lack of clear and convincing ev iden ce of intentional conduct or gross negligence." (See D.E. 456 at 4.) The Report c o n c lu d e s that, because there are disputed issues of material fact on the record with re g a rd to whether the Dayco Defendants' conduct qualifies as intentional misconduct,

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s u m m a ry judgment in favor of the Dayco Defendants on this ground is inappropriate. (See Report at 47-51.) Neither Plaintiffs nor the Dayco Defendants object to these fin d ing s, and the Court finds, after an independent review of the record, that the record a n d the relevant law supports the Report's recommendations on this issue. Accordingly, f o r the reasons described in the Report, the Court adopts the findings of the Magistrate J u d g e that summary judgment be denied as to Plaintiffs' claims for punitive damages. 8. A t to r n e y ' s Fees

Finally, the Dayco Defendants seek summary judgment on all claims for attorney's f e es by Plaintiffs because, according to the Dayco Defendants, such damages are not rec o v era b le under Florida law. (See D.E. 456 at 4.) The Report concludes that summary ju d g m e n t on this ground would be premature, as "all issues relative to attorneys' fees will b e resolved after trial." (Report at 51.) Again, neither Plaintiffs nor the Dayco D e f en d a n ts object to these findings, and, after an independent review of the record, the C o u rt finds that summary judgment precluding Plaintiffs from seeking attorney's fees w o u ld be inappropriate at this stage in the case. Accordingly, the Court adopts the R e p o r t' s conclusion on the issue of attorney's fees and denies the Dayco Defendants' m o tio n for summary judgment on that ground. III. C o n c lu s io n

F o r the reasons described above, it is O R D E R E D AND ADJUDGED that

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1.

T h e Report and Recommendation on Dayco Products, Inc. and Dayco P ro d u c ts , LLC's Motion for Partial Summary Judgment, issued by U.S. M a g istra te Judge Edwin G. Torres on October 9, 2008 (D.E. 629), is ad o p ted in part and overruled in part as stated in this Order.

2.

T h e Motion for Partial Summary Judgment filed by Defendants Dayco P r o d u c ts , Inc. and Dayco Products, LLC on February 27, 2008 (D.E. 456; s e e also D.E. 457, 458) is GRANTED in part and DENIED in part as d e s c rib e d in this Order.

DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of D e c em b e r, 2008.

JOAN A. LENARD U N I T E D STATES DISTRICT JUDGE

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