Hardy v. Bed Bath and Beyond, Inc.

Filing 39

ORDER granting 35 Motion to Stay. If Hardy wishes to file a second amended complaint, she must do so on before March 22, 2018. ; denying as moot 36 Motion for Extension of Time; granting 17 Motion to Dismiss Amended Complaint; denying as moot 20 Motion to Deny Class Certification. Signed by Judge Robert N. Scola, Jr on 3/9/2018. (pes)

United States District Court
for the
Southern District of Florida
Candace Hardy, Plaintiff,

)
)
v.
)
) Civil Action No. 17-22315-Civ-Scola
Bed Bath & Beyond, Inc.,
)
Defendant.
)
Order Granting Motion to Dismiss
Plaintiff Candace Hardy complains Defendant Bed Bath & Beyond, Inc.,
sold her pillowcases that BB&B misrepresented as containing 100 percent
pima cotton. Hardy claims the pillowcases contain only 2 percent pima cotton.
Based on this misrepresentation, Hardy seeks relief: (1) based on BB&B’s
violation of the Florida Deceptive and Unfair Trade Practices Act; and (2) in the
form of a declaratory judgment. In response, BB&B contends Hardy’s
complaint should be dismissed because: (1) Hardy lacks standing; and (2) she
fails to state a claim for either FDUTPA or declaratory relief. Because the Court
finds Hardy has not sufficiently alleged standing, it grants BB&B’s motion
(ECF No. 17) and in doing so declines to fully address BB&B’s other arguments
at this time.
1. Legal Standard
Because the question of Article III standing implicates subject-matter
jurisdiction, it must be addressed as a threshold matter prior to the merits of
any underlying claims. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S.,
P.A., 781 F.3d 1245, 1250 (11th Cir. 2015). Article III of the Constitution
grants federal courts judicial power to decide only actual “Cases” and
“Controversies.” U.S. Const. Art. III § 2. The doctrine of standing is a “core
component” of this fundamental limitation that “determin[es] the power of the
court to entertain the suit.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of
Fla., 641 F.3d 1259, 1264–65 (11th Cir. 2011) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); Warth v. Seldin, 422 U.S. 490, 498 (1975)).
“In the absence of standing, a court is not free to opine in an advisory capacity
about the merits of a plaintiff’s claims, and the court is powerless to continue.”
Id. (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269
(11th Cir. 2006)). The “irreducible constitutional minimum” of standing under
Article III consists of three elements: (1) the plaintiff must have suffered an
actual or imminent injury, or a concrete “invasion of a legally protected

interest”; (2) that injury must have been caused by the defendant’s
complained-of actions; and (3) the plaintiff’s injury or threat of injury must
likely be redressable by a favorable court decision. Lujan, 504 U.S. at 560–61;
see also Hollywood Mobile Estates Ltd., 641 F.3d at 1265 (stating same). The
actual or imminent injury component requires a showing of “a harm that is
both concrete and actual or imminent, not conjectural or hypothetical.” Vt.
Agency, 529 U.S. at 771.
2. Hardy’s complaint fails to sufficiently allege standing to bring a
FDUTPA claim.
Hardy has alleged: (1) she purchased pillowcases that were represented
to contain 100 percent pima cotton; (2) the pillowcases contained only 2
percent pima cotton; and (3) she suffered damages as a result of this
misrepresentation. Specifically, Hardy contends she did not receive the
premium product she thought she was purchasing but instead received
something of inferior quality and therefore did not obtain the benefit of her
bargain. Had Hardy’s complaint stopped here, her allegations would likely
suffice to allege an injury in fact sufficient to satisfy the third element required
to establish standing. See Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1353
(S.D. Fla. 2012) (Cohn, J.) (citing Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984,
990–91 (E.D. Cal. 2012) (finding Article III standing where plaintiff alleged she
relied on representations on packaging of product and that she lost money on
the ineffective product).
However, Hardy attached to her complaint the billing documentation
associated with her purchase. (Compl. Ex. 3, ECF No. 14-3.) Part of this
paperwork includes BB&B’s return instructions which states BB&B “gladly
accept[s] returns or exchanges at any of [its] stores or by mail.” (Id. at 3.) There
are no restrictions stated in the instructions for returns, but BB&B asks
customers to indicate why they are returning the item. (Id.) Among the possible
reasons a customer can choose from is that the “[i]tem is not as
described/pictured.” (Id. (additionally, a customer can also choose “Other” in
the event that the reason for the return doesn’t fit any other of the specified
categories).) The only injury Hardy claims to have actually suffered is the
outlay of funds for a product she did not actually receive: as she sets forth in
her response to BB&B’s motion, her damages are the result of her having
“part[ed] with money to purchase a misbranded product.” (Pl.’s Resp., ECF No.
22, 7.) But BB&B, according to the very exhibit Hardy herself attached to her
complaint, made a pre-litigation refund offer for complete relief for the only
damages Hardy alleges.

“[T]he clear intent of [FDUPTA] as expressed by its plain language is to
provide both equitable and legal remedies to private consumers who are
aggrieved parties and/or sustained actual losses because of [] violations(s)
under FDUPTA.” Martinez v. Rick Case Cars, Inc., 278 F. Supp. 2d 1371, 1373
(S.D. Fla. 2003) (Seitz, J.) (quoting Macias v. HBC of Fla., Inc., 694 So.2d 88, 90
(Fla. 3d DCA 1997) (emphasis added). Because, according to her complaint,
Hardy could have received a full refund, the only injury she actually alleges
was essentially mooted. See Hamilton v. Gen. Mills, Inc., No. 6:16-CV-382-MC,
2016 WL 4060310, at *5 (D. Or. July 27, 2016) (finding plaintiff’s injury
mooted by the company’s refund offer); Johnson v. Bobcat Co., 175 F. Supp. 3d
1130, 1137 (D. Minn. 2016) (noting cases that stand for the general
proposition: “when a defendant offers a plaintiff a full refund for all of its
alleged loss prior to the commencement of litigation, this refund offer deprives
the plaintiff of Article III standing because the plaintiff cannot establish an
injury in fact”).
In her first count, Hardy alleges violations of FDUTPA’s Florida Statutes
§§ 501.201 through 501.213. In this count, Hardy seeks monetary damages as
well declaratory and injunctive relief. Although combined into one count, these
allegations implicate two separate paragraphs of FDUTPA, each of which calls
for a separate analysis. In seeking monetary damages, a plaintiff much show
that she has “suffered a loss.” Fla. Stat. § 501.211(2). In seeking declaratory or
injunctive relief, on the other hand, a plaintiff must establish only that she has
been “aggrieved.” Fla. Stat. § 501.211(1). Because the only injury Hardy
actually alleges 1 was mooted by BB&B’s pre-litigation offer of a full refund,
Hardy has not sufficiently alleged that she either “suffered a loss” or was
“aggrieved.” Because of this, the Court does not find she has cognizably alleged
“a harm that is both concrete and actual or imminent, not conjectural or
hypothetical.” Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765,
771 (2000). As such, she has failed to establish Article III standing to proceed
under FDUTPA.
Hardy argues that the proper inquiry for standing to assert a claim for
injunctive relief under FDUTPA is whether “the consuming public at large will
purchase th[e] falsely labeled products.” (Pl.’s Resp. at 10.) This is contrary to
the plain language of FDUTPA, permitting only someone who is “aggrieved by a
1 While Hardy alleges concerns that she or her family members could suffer an allergic reaction
when coming into contact with the pillowcases, she does not allege that anyone actually did so.
This concern, then, is far too speculative to be considered an injury that would establish Article
III standing. Vermont Agency, 529 U.S. at 771 (an injury in fact must not be “conjectural or
hypothetical”).

violation” of the statute to proceed with a suit for declaratory or injunctive
relief. And although the Court agrees with Hardy that FDUTPA “is designed to
protect not only the rights of litigants, but also the rights of the consuming
public at large,” this does not mean that Hardy is not required to otherwise
establish Article III standing. (Pl.’s Resp. at 10 (quoting Galstaldi v. Sunvest
Communities USA, LLC, 637 F. Supp. 2d 1045, 1057 (S.D. Fla. 2009) (Altonaga,
J.)).) Hardy’s argument in this regard is unavailing.
3. Hardy’s complaint fails to sufficiently allege standing to proceed
with her declaratory-judgment count.
In her second count, Hardy seeks declaratory judgments under the
Federal Declaratory Judgments Act, the Textile Fiber Products Identification
Act, and, again, FDUTPA. BB&B, in its motion to dismiss, argues Hardy lacks
standing to seek any declaratory relief because she has not alleged any
possibility, never mind likelihood, of future injury. In response, Hardy
addresses only her standing to seek a declaratory judgment under FDUTPA. As
the Court has already found, above, Hardy has failed to allege standing to
pursue her claim for declaratory relief under FDUTPA.
With respect to Hardy’s claim for relief under the Federal Declaratory
Judgments Act, “a plaintiff must prove not only an injury, but also a ‘real and
immediate threat’ of future injury in order to satisfy the ‘injury in fact’
requirement.” Barry v. Carnival Corp., 424 F. Supp. 2d 1354, 1356–57 (S.D.
Fla. 2006), aff’d, 257 F. App’x 224 (11th Cir. 2007) (Moore, J.) (quoting
Koziara v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004)). Hardy
has not presented any allegations that she herself faces any real and
immediate threat of future injury. Regarding her attempt to bring a claim for a
declaratory judgment under the TFPIA, that Act “does not provide for a private
right of action.” Beautiful Home Textiles (USA), Inc. v. Burlington Coat Factory
Warehouse Corp., No. 13 CIV. 1725 LGS, 2013 WL 3835191, at *4 (S.D.N.Y.
July 25, 2013) (citing Laplein Corp. v. Hi–Top Trading Corp., No. 90 Civ. 1536,
1990 WL 144956 (S.D.N.Y. Sept. 26, 1990) (“[A]n action between private parties
... is not the proper forum for enforcing the Textiles Fiber Products
Identification Act.”)). Ultimately, Hardy has failed to establish her standing to
pursue her claims for a declaratory judgment.
4. Conclusion
Hardy has failed to implicate this Court’s subject-matter jurisdiction
because she has not adequately alleged standing to proceed on either count
one or two. The Court thus grants BB&B’s motion to dismiss Hardy’s amended
complaint (ECF No. 17). If Hardy’s wishes to attempt to correct the standing

deficiencies outlined above, she may file a second amended complaint with
respect to her claims under section 501.211(1) (but not section 510.211(2)) of
FDUTPA or the Federal Declaratory Judgments Act. However, any attempt to
amend her claim for declaratory relief under the TFPIA or for actual damages
under Florida Statutes section 501.211(2) would be futile and therefore those
claims are dismissed with prejudice.
Because the Court finds Hardy has failed to carry her burden of
establishing subject-matter jurisdiction, it declines to fully opine on BB&B’s
argument that Hardy has also failed to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The Court notes, however, that BB&B’s concerns regarding
Hardy’s claims for restitution and disgorgement appear, on a preliminary peek,
meritorious. Hardy is thus cautioned to address this and any other flaws in her
complaint should she choose to amend in an effort to address her jurisdictional
defects.
Lastly, because the Court has granted BB&B’s motion to dismiss and
has doubts about Hardy’s ability to sufficiently allege standing in an amended
pleading, the Court grants BB&B’s motion to stay discovery (ECF No. 35). If
Hardy wishes to file a second amended complaint, she must do so on before
March 22, 2018. BB&B must thereafter respond to any amended complaint
within fourteen days of its filing. If BB&B responds with an answer to the
complaint, the parties must file a joint motion asking the Court to lift the stay
along with a proposed amended scheduling order within seven days of the
answer’s filing. If BB&B instead responds with another motion to dismiss,
Hardy must file a motion asking the Court to either lift or continue the stay
within seven days of the motion’s filing. Because the Court has granted a stay
in this case, the Court denies as moot BB&B’s motion for an enlargement of
time to respond to discovery (ECF No. 36). Finally, because the Court has
dismissed Hardy’s second amended complaint, BB&B’s motion to deny class
certification or, alternatively, for a rule 23(d)(1)(D) order (ECF No. 20) is also
denied as moot.
Done and ordered, at Miami, Florida, on March 9, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge