Tymar Distribution LLC v. Mitchell Group USA, LLC et al

Filing 43

ORDER granting 24 Joint Motion to Dismiss the Complaint. Amended Complaint due by 9/17/2021. Signed by Chief Judge Cecilia M. Altonaga on 9/8/2021. See attached document for full details. (ps1)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-21976-CIV-ALTONAGA/Torres
TYMAR DISTRIBUTION LLC,
Plaintiff,
v.
MITCHELL GROUP USA, LLC; et al.,
Defendants.
__________________________________/

ORDER
THIS CAUSE came before the Court on Defendants, Mitchell Group USA, LLC (“MGU”)
and Rivelle Products, Inc.’s Joint Motion to Dismiss the Complaint [ECF No. 24], filed on July
15, 2021. Plaintiff, Tymar Distribution LLC, filed a Response [ECF No. 26]; to which Defendants
filed a Reply [ECF No. 34]. The Court has carefully considered the Complaint [ECF No. 1], the
parties’ written submissions, the record, and applicable law. For the following reasons, the Motion
is granted.
I.

BACKGROUND

This action arises from Defendants’ brand-protection practices, which are allegedly aimed
at insulating Defendants’ system of minimum-advertised pricing from intrabrand competition, to
the harm of Plaintiff and Florida consumers. (See generally Compl.). Plaintiff is a Rhode Island
limited liability company with its principal place of business in Rhode Island. (See id. ¶ 13). MGU
is a Florida limited liability company with its principal place of business in Florida. (See id. ¶ 14).
At the time of the events at issue, Rivelle Products, Inc. was a California corporation; on January
19, 2021, it merged into a Florida corporation bearing the same name. (See id. ¶ 15).

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Plaintiff is an Amazon seller (see id. ¶ 42) that in 2018 “listed approximately 300 brand
names on amazon.com[] and sold over 150,000 units of product to customers on Amazon with a
99% lifetime positive feedback rating” (id. ¶ 43 (alterations added)). “MGU is the exclusive
United States distributor of certain French-made personal care products” from the brand Fair &
White (“F&W”), through its Amazon merchant store, Beauty Dreams. (Id. ¶ 24). Rivelle is the
exclusive Fulfilled-by-Amazon distributor of many F&W products for MGU’s Amazon store and
generally serves as “a mail order source of health and beauty products[.]” (Id. ¶ 26 (alteration
added)). Rivelle also “added ‘electronic shopping’ [services] as a second endeavor” (id. (alteration
added)), including the brand-protection services that form the basis of Plaintiff’s Complaint (see
id. ¶ 27; see generally id.).
Plaintiff operates in a so-called “grey market,” which Plaintiff defines as “trade of a
commodity through distribution channels that are not authorized by the original manufacturer or
trade mark [sic] proprietor.” (Id. ¶ 7 n.5 (quotation marks and citation omitted)). On Amazon,
companies who deal in the grey market, such as Plaintiff, “sourc[e] products at wholesale, from
an authorized distributor of a manufacturer, []from the manufacturer itself, or from a downstream
purchaser, and sell[] it [sic] at an enhanced retail price point online, but often at a cheaper price
than other sellers are selling it [sic], thus benefiting consumers, who get authentic product[s] at a
discount.” (Id. ¶ 5 (alterations added)). These activities, while not violative of Amazon policy
(see id. ¶¶ 38–39), “threaten the profits of manufacturers who attempt to maintain a system of
[m]inimum[-a]dvertised [p]ricing” (id. ¶ 7 (alterations added)). To combat grey-market dealers,
some companies, including Rivelle, offer brand-protection services. (See id. ¶¶ 26–27; 49). These
services include policing the grey market by identifying unauthorized sellers on Amazon so the

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intellectual property (“IP”) owner may enforce its rights via Amazon’s infringement notification
protocols. (See id. ¶¶ 8, 35, 36).
After purchasing F&W inventory from MGU on May 3, 2018, Plaintiff began selling F&W
products soon thereafter. (See id. ¶¶ 53–54). Despite selling at prices below MGU’s system of
minimum-advertised pricing, Plaintiff’s F&W profit margin was 22.1 percent. (See id. ¶¶ 43–44).
Unbeknownst to Plaintiff, around May 2018, MGU formed a business relationship with Rivelle,
“established [Rivelle] as its Amazon brand protector[;] and gave [it] exclusive or substantially
exclusive access . . . to the most popular F&W products.” (Id. ¶ 60 (alterations added)). On May
29, 2018, MGU — or, according to Plaintiff, Rivelle in disguise — sent Plaintiff a warning under
the Digital Millennium Communications Act, complaining of copyright infringement and offering
to withdraw the notice if Plaintiff refrained from selling F&W products on Amazon. (See id. ¶
55).
Plaintiff did not heed MGU’s warnings. (See id.). When Plaintiff would not comply, MGU
upped the ante and lodged IP complaints with Amazon in late June 2018, “alleging copyright
infringement and trademark infringement.” (Id. ¶ 58). Plaintiff continued selling F&W products,
so MGU/Rivelle upped the ante once again in July 2018, filing additional IP complaints which
alleged “a far more serious charge of counterfeiting” — even though the listed F&W products
were purchased from MGU. (Id. ¶ 62). Per Amazon policy, the F&W listings were removed
pending investigation. (See id.).
To substantiate the products’ authenticity, Plaintiff produced its invoices from MGU to
Amazon, and Amazon reversed its decisions and restored the listings. (See id. ¶¶ 62, 65). This
cycle persisted for several months, culminating in 41 total IP complaints. (See id. ¶ 65). After

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Rivelle/MGU’s “relentless pursuit” of Plaintiff, Amazon finally suspended Plaintiff’s account on
October 18, 2018, following an October 2, 2018 counterfeiting complaint. (Id. ¶ 70).
“Amazon stated that it took Defendants’ accusations very seriously” (id. ¶ 86), and “it
would act favorably if MGU would retract its accusations” (id. ¶ 87). “Without a seller retraction[,
Plaintiff] was helpless to prove its case.” (Id. ¶ 73 (alteration added)). Thus, “[w]ith its entire
business shut down, [Plaintiff] had no alternative, in mitigation of its damages, but to hire a
consultant . . . and thereafter agree to cease its sales of F&W products on Amazon in exchange for
MGU’s retraction of [the] IP [c]omplaints and concomitant account reinstatement.” (Id. ¶ 74
(alterations added)). Plaintiff and MGU agreed that MGU/Rivelle would retract the IP complaints
if Plaintiff ceased sales of F&W products on Amazon. (See id. ¶ 75; see also generally id., Ex. 10
[ECF No. 1-10]). Sure enough, Plaintiff’s account suspension was lifted after 18 days. (See id. ¶¶
87–88).
Plaintiff highlights price increases of three F&W products resulting from MGU/Rivelle’s
brand-protection practices: (1) F&W Original Serum One, which “sold for between $6[.00] and
$14.50 since 2014[,]” but later increased in price to sell for “between $14 and $39.99”; (2) F&W
So White Skin Perfector Lightening Cream, which “generally sold for between $4[.00] and
$12[.00] since 2012” and later increased to a range “between $14.32 and $14.99”; and (3) F&W
Original Lightening & Brightening Glycerin Lotion, which “sold for between $7[.00] and $10[.00]
since 2016” but increased to $18.99. (Id. ¶ 79 (alterations added)). Plaintiff alleges these price
increases have stabilized at artificially high levels. (See id. ¶ 78).
Plaintiff filed its Complaint asserting two claims against Defendants: Count I alleges
tortious interference with existing and prospective business relationships, and Count II alleges a
violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). (See generally

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id.). Defendants move to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction and, alternatively, under Rule 12(b)(6) for failure to state
claims for relief. (See generally Mot.).
II.

STANDARDS

Rule 12(b)(1) — Subject Matter Jurisdiction. “Federal courts are courts of limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, subject
matter jurisdiction must be established before a case can proceed on the merits. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998). It is presumed that a federal court lacks
jurisdiction in a case until the plaintiff demonstrates the court has jurisdiction over the subject
matter. See Kokkonen, 511 U.S. at 377 (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11
(1799); McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182–83 (1936)).
“[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter
jurisdiction, a court must zealously insure that jurisdiction exists over a case[.]” Smith v. GTE
Corp., 236 F.3d 1292, 1299 (11th Cir. 2001) (alterations added; citations omitted).
Under Rule 12(b)(1), a defendant may lodge a facial or factual attack on the court’s subject
matter jurisdiction. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
A facial attack asserts that a plaintiff has failed to allege a basis for subject matter jurisdiction in
the complaint. See id. In a facial attack, the plaintiff’s allegations are taken as true, and the plaintiff
is afforded safeguards like those provided in challenging a Rule 12(b)(6) motion raising the failure
to state a claim for relief. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citation
omitted).
By contrast, a factual attack “challenges the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits,

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are considered.” Menchaca, 613 F.2d at 511 (citation omitted). In a factual attack, courts may
weigh the evidence presented, no presumption of truth attaches to the plaintiff’s allegations, and
the existence of disputed material facts does not prevent the trial court from deciding the merits of
the jurisdictional claims. See Lawrence, 919 F.2d at 1529 (citations omitted). Moreover, “[i]n the
face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that
jurisdiction exists.” OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002) (alteration
added; citations and footnote call number omitted).
Rule 12(b)(6) — Failure to State a Claim. “To survive a motion to dismiss [under Rule
12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added;
quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard
“does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. (alteration added; quoting Twombly, 550 U.S.
at 555). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
Consequently, “only a complaint that states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). “The mere possibility the
defendant acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. CocaCola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by
Mohamad v. Palestinian Auth., 566 U.S. 449 (2012).
When reviewing a motion to dismiss, a court must construe the complaint in the light most
favorable to the plaintiff and take its factual allegations as true. See Brooks v. Blue Cross & Blue

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Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc., 835 F.2d
270, 272 (11th Cir. 1988)).
III.

DISCUSSION

Motion to Dismiss for Lack of Subject Matter Jurisdiction. As a threshold matter,
Defendants facially attack the Court’s subject matter jurisdiction over Plaintiff’s claims. (See Mot.
8–11). Defendants argue that Plaintiff fails to adequately plead damages sufficient to satisfy the
amount-in-controversy required to invoke diversity jurisdiction under 28 U.S.C. section 1332(a).
(See Mot. 8–11). According to Defendants, the “Complaint fails to allege more than $75,000 in
damages that could actually be recovered by [Plaintiff] if it succeeded on both its tortious
interference and FDUTPA claims.” (Id. 8 (alteration added)).
“[T]o invoke a federal court’s diversity jurisdiction, a plaintiff must claim, among other
things, that the amount in controversy exceeds $75,000.” Federated Mut. Ins. Co. v. McKinnon
Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (citing 28 U.S.C. § 1332). “A plaintiff satisfies
the amount in controversy requirement by claiming a sufficient sum in good faith.” Id. (citing St.
Paul Mercury Indem. v. Red Cab Co., 303 U.S. 283, 298 (1938)).
Where a plaintiff alleges indeterminate damages, it must prove “by a preponderance of the
evidence that the claim on which it is basing jurisdiction meets the jurisdictional minimum.” Id.
(citation omitted). By contrast, where — as here — a plaintiff pleads a specific amount of
damages, a defendant may obtain dismissal only if it appears “to a legal certainty that the claim is
really for less than the jurisdictional amount[.]” Red Cab Co., 303 U.S. at 289 (footnote call
number omitted). A defendant may demonstrate the “absence of jurisdictional amount to a legal
certainty when state law bars recovery of the type of damages claimed.” Klepper v. First Am.
Bank, 916 F.2d 337, 341 (6th Cir. 1990) (citation omitted); see also Leonard v. Enter. Rent a Car,

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279 F.3d 967, 972–74 (11th Cir. 2002) (holding applicable state law did not provide for attorney’s
fees, which accordingly could not count toward the jurisdictional threshold).
Defendants argue that Plaintiff’s FDUTPA claim seeks lost profits damages, which are not
recoverable under the FDUTPA. (See Mot. 10–11). The parties cite a wealth of persuasive
authority in support of their competing positions. (See id.; Resp. 8–10). Defendants contend the
FDUTPA only allows for the recovery of actual damages, and “lost profits are not ‘actual
damages,’ but instead are merely a type of consequential damages, and therefore are not
recoverable under [the] FDUTPA.” (Mot. 10 (alteration added; citation omitted)). According to
Plaintiff, “the accepted definition of actual damages in a consumer’s FDUTPA case is meaningless
in a competitor’s case, where actual lost profits are the competitor’s actual damages.” (Resp. 9
(quotation marks and citations omitted)). Moreover, Plaintiff argues that “Florida state courts . . .
have dispelled the notion that lost profits are always consequential damages, noting that the issue
may turn on whether such damages flow directly and immediately from the interference.” (Id.
(alteration added; quotation marks and citation omitted)). Finally, Plaintiff states “the weight of
Florida law holds past lost profits recoverable under [the] FDUTPA[.]” (Id. (alterations added)).
The Court agrees with Plaintiff.
The FDUTPA, which prohibits deceptive and unfair trade practices, only permits the
recovery of “actual damages[,]” which the Act does not define. Fla. Stat. § 501.211(2) (alteration
added).

When the Florida legislature enacted the FDUTPA, it notably permitted only a

“consumer” to state a claim for damages. See 1973 Fla. Laws 679 (amended by 2001 Fla. Laws
ch. 2001-39 section 6 and currently codified at section 501.211(2), Florida Statutes); cf. Fla. Stat.
§ 501.211(1) (since enactment by 1973 Fla. Laws 679, permitting “anyone aggrieved” to seek
equitable relief). Thus, when faced with the task of defining actual damages under the FDUTPA,

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one Florida district court of appeal adopted a Texas court’s measure of damages under the Texas
Deceptive Trade Practices Act, which is similar to the FDUTPA, 1 stating:
Generally, the measure of actual damages is the difference in the market value of
the product or service in the condition in which it was delivered and its market
value in the condition in which it should have been delivered according to the
contract of the parties. A notable exception to the rule may exist when the product
is rendered valueless as a result of the defect — then the purchase price is the
appropriate measure of actual damages.
Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984) (alterations adopted; citation
omitted). This benefit-of-the-bargain damages measure “utilizes an expectancy theory, evaluating
the difference between the value as represented and the value actually received.” Dorestin v.
Hollywood Imps., Inc., 45 So. 3d 819, 827 (Fla. 4th DCA 2010) (Gross, C.J., concurring specially)
(alteration adopted; quotation marks and citation omitted).
Following the Rollins court’s lead, other Florida district courts of appeal have adopted this
narrow view on recoverable actual damages, see id. at 827 n.4 (collecting cases), and have gone a
step further, holding “‘actual damages’ under [the] FDUTPA do not include ‘consequential,’
‘special,’ or ‘incidental’ damages[,]” id. at 828 (alterations added; footnote call numbers omitted;
collecting cases). The Supreme Court of Florida has not adopted these definitions.
In 2001, the Florida Legislature amended the FDUTPA to replace the word “consumer”
with “person,” 2001 Fla. Laws ch. 2001-39 § 6 (amending section 501.211(2) as described),
causing Florida’s appellate courts to hold that corporate-competitor plaintiffs, rather than just
consumers, can seek damages under the FDUTPA. See generally Digiport, Inc. v. Foram Dev.
BFC, LLC, 314 So. 3d 550 (Fla. 3d DCA 2020) (claim by a company for misappropriation of trade

1

The Texas Supreme Court permits plaintiffs to seek lost profits under the Texas Deceptive Trade Practices
Act. See White v. Sw. Bell Tel. Co., 651 S.W.2d. 260, 262–63 (Tex. 1983) (holding a consumer could seek
lost profits damages arising from a telephone company’s incorrect listing of his telephone number in the
yellow pages).

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secrets); Bailey v. St. Louis, 196 So. 3d 375 (Fla. 2d DCA 2016) (claim by a company on unfair
competition grounds). Many federal district courts agree. See Kelly v. Palmer, Reifler, & Assocs.,
P.A., 681 F. Supp. 2d 1356, 1372–74 (S.D. Fla. 2010) (collecting cases).
Of course, in a claim brought by a corporate competitor, there is no bargain giving rise to
the expectancy measure of damages employed in traditional consumer cases. Compare H & J
Paving of Fla., Inc. v. Nextel, Inc., 849 So. 2d 1099, 1102 (Fla. 3d DCA 2003) (awarding the
plaintiff the difference in value of radio system at time of sale based on promised lifespan of eight
years and value of system that would be rendered obsolete in a few years because of the
defendant’s deceptive practice) with CRMSuite Corp. v. General Motors Co., No. 8:20-cv-762,
2021 WL 914170, at *6 n.8 (M.D. Fla. March 10, 2021) (corporate-competitor plaintiff could
collect expenses caused by FDUTPA violation, because “damages in these non-traditional cases
are typically those directly caused by the unfair or deceptive acts.” (collecting cases)). Corporate
competitors instead suffer lost profits, lost revenue, reputational harm, and other damages
commonly observed in business torts claims rather than contract-based causes of action. See ADT
LLC v. Alarm Prot. Tech. Fla., LLC, No. 12-80898-Civ, 2013 WL 11276119, at *5 (S.D. Fla. Apr.
18, 2013); see also Marco Island Cable v. Comcast Cablevision of S., Inc., 312 F. App’x 211, 213–
14 (11th Cir. 2009) (affirming jury award of damages caused by the corporate competitor’s
deceptive and unfair practices measured by the business’s diminished value).
Court decisions evaluating the damages available to a competitor company under the
FDUTPA vary widely. Federal district courts are split: many have held past lost profits are
available, 2 and many others have refused to permit plaintiffs to seek lost profits at all, applying the

2

To be sure, “there is no substantive distinction between past lost profits and future lost profits for purposes
of determining whether past lost profits are actual damages.” Midway Labs USA, LLC v. S. Serv. Trading,
S.A., No. 19-24857-Civ, 2020 WL 2494608, at *7 (S.D. Fla. May 14, 2020).

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benefit-of-the-bargain measure of damages. Midway Labs USA, LLC, 2020 WL 2494608, at *6
(collecting cases and noting split). Yet, many of these cases did not engage in a significant analysis
of the issue. See id. at *7 (acknowledging the conclusory nature of several courts’ analyses).
Recently, one Florida district court of appeal favorably cited a federal district court 3 that awarded
past lost profits to a corporate competitor. See Digiport, Inc., 314 So. 3d at 554 (holding there was
no error “to the extent the trial court precluded an award of future lost profits” (emphasis added)
(citing Factory Dir. Tires Inc. v. Cooper Tire & Rubber Co., No. 3:11-cv-255, 2011 WL 13117118,
at *7 (N.D. Fla. Oct. 24, 2011)) (other citation omitted). Cf. Stewart Agency, Inc., 266 So. 3d at
214 (acknowledging entities often “do not suffer actual damages[;] their damages are frequently
special or consequential damages, and thus, not compensable[.]” (alterations added)).
The Florida Supreme Court previously defined “actual damages” when construing a libel
statute. See Ross v. Gore, 48 So. 2d 412, 414 (Fla. 1950). In Ross, the statute permitted recovery
of “only actual damages[,]” id. at 413 (alteration added), and the Florida Supreme Court stated
“[s]ince [the term ‘actual damages’] is used synonymously with ‘compensatory damages’ in many
of our decided cases, we think it is fair to assume that ‘actual damages’ mean ‘compensatory
damages.’” Id. at 414 (alterations added). The Florida Supreme Court continues to use the terms
actual damages and compensatory damages interchangeably. See, e.g., Bidon v. Dep’t of Prof.
Reg., Fla. Real Estate Comm’n, 596 So. 2d 450, 452 (Fla. 1992). Even the Rollins court
acknowledged that “actual damages [are] generally considered synonymous with compensatory
damages, in contradistinction to punitive damages.” 454 So. 2d at 585 (alteration added) (citing 2
Words and Phrases 363 (1955)).

3

Florida courts often cite federal decisions interpreting the FDUTPA as persuasive authority. See Stewart
Agency, Inc. v. Arrigo Enters., Inc., 266 So. 3d 207, 213 n.2 (Fla. 4th DCA 2019).

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The Florida Supreme Court broadly defines compensatory damages as those which “arise
from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses, and
bodily pain and suffering.” Margaret Ann Super Mkts., Inc. v. Dent, 64 So. 2d 291, 292 (Fla.
1953) (quotation marks and citation omitted). Lost profits are certainly compensatory damages.
See, e.g., Fort Lauderdale Lincoln Mercury, Inc. v. Fallaro, 616 So. 2d 594, 595 (Fla. 4th DCA
1993) (characterizing lost profits as compensatory damages). And in claims with no underlying
transaction, such as business torts, lost profits are often directly caused by a defendant’s wrongful
act and recoverable simply as compensatory damages. See, e.g., Ins. Field Servs., Inc. v. White &
White Inspection & Audit Serv., Inc., 384 So. 2d 303, 308 (Fla. 5th DCA 1980) (“Here, there is no
question but that the tortious interference of appellants was the direct cause of appellee’s lost
profits[.]” (alteration added)).
By contrast, courts generally limit their categorization of damages as “consequential” to
claims sounding in contract, and the definition of consequential damages as those arising “from
losses incurred by the non-breaching party in its dealings, often with third parties, which were a
proximate result of the breach, and which were reasonably foreseeable by the breaching party at
the time of contracting.” Hardwick Props., Inc. v. Newbern, 711 So. 2d 35, 40 (Fla. 1st DCA
1998) (quotation marks and citation omitted). 4 Put another way, consequential damages are those
that do not “flow[] directly from the parties’ immediate transaction.” HCA Health Servs. of Fla.,
Inc., 204 So. 3d at 471 n.2 (emphasis and alteration added). Where, as here, the claim does not
involve any breach of contract, warranty, or similar wrong sounding in contract, any line drawing

4

Even in contract cases, lost profits damages are often, but not always, consequential in nature. See, e.g.,
HCA Health Servs. of Fla., Inc. v. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d 469, 471 n.2 (Fla.
4th DCA 2016) (“[L]ost profits do not always constitute consequential damages as a matter of law . . .” and
are “recoverable as general damages where they flow directly and immediately from the breach of contract.”
(alteration added; emphasis in original; quotation marks and citation omitted)).

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between expectancy and consequential damages is rather inapt. See id.; cf. Safeco Title Ins. Co. v.
Reynolds, 452 So. 2d 45, 49 (Fla. 2d DCA 1984) (“Damages for torts arising out of contracts are
governed by the same rules as in the case of contract actions.”).
The above principles suggest a much larger universe of damages available in FDUTPA
claims arising outside the consumer transaction context, cf. Dent, 64 So. 2d at 292 (describing the
breadth of compensatory damages available under Florida law in a tort case), especially when
considered alongside the liberal construction courts must afford the FDUTPA to accomplish its
remedial purpose, see Fla. Stat. § 501.202. It makes considerable sense to permit a corporatecompetitor plaintiff to seek lost profits damages when there is no transaction giving rise to the oftused expectancy measure of damages. See ADT LLC v. Alarm Prot. Tech. Fla., LLC, No. 1280898-Civ, 2013 WL 11276119, at *5 (S.D. Fla. Apr. 18, 2013) (holding a corporate competitor
could seek its lost profits under the FDUTPA because a “competitor has not purchased a worthless
product[;]” thus “[the] competitor’s actual damages in a FDUTPA case are its ‘actual lost profits’
suffered by reason of the unfair trade practices.” Id. (alterations added; citations omitted)).
The Court joins other federal district courts in holding a corporate-competitor plaintiff may
seek lost profits damages under the FDUTPA.

Accordingly, the Court has subject matter

jurisdiction because Plaintiff may seek lost profits damages under its FDUTPA claim and meets
the jurisdictional requirement.
Motion to Dismiss for Failure to State a Claim. Having concluded subject matter
jurisdiction exists over Plaintiff’s claims, the Court next addresses Defendants’ merits-based
arguments for dismissal.
Tortious Interference (Count I). Defendants contend Plaintiff’s tortious interference claim
is barred by the single-action rule. (See Mot. 12–15). The Court agrees.

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“In Florida, a single publication gives rise to a single cause of action.” Callaway Land &
Cattle Co. v. Banyon Lakes C. Corp., 831 So. 2d 204, 208 (Fla. 4th DCA 2002) (citation omitted).
In other words, “[t]he various injuries resulting from it are merely items of damage arising from
the same wrong.” Id. (citation omitted). This rule, called the single-publication or single-action
rule, “is designed to prevent plaintiffs from circumventing a valid defense to defamation by
recasting essentially the same facts into several causes of action all meant to compensate for the
same harm.” Id. (quotation marks and citations omitted); see also Klayman v. Judicial Watch,
Inc., 22 F. Supp. 3d 1240, 1256 (S.D. Fla. 2014). Thus, a factually repetitive count fails unless it
“set[s] forth an independent tort for the recovery of damages[.]” Boyles v. Mid-Fla. Television
Corp., 431 So. 2d 627, 636 (Fla. 5th DCA 1983) (alterations added; emphasis omitted).
In reliance on the single-action rule, courts dismiss concurrent counts for related torts based
on the same publication and underlying facts as a failed defamation count. See Ortega Trujillo v.
Banco Cent. Del Ecuador, 17 F. Supp. 2d 1334, 1339–40 (S.D. Fla. 1998) (dismissing false light
privacy claim arising from same allegedly defamatory publication); Fridovich v. Fridovich, 598
So. 2d 65, 70 (Fla. 1992) (“[T]he successful invocation of a defamation privilege will preclude a
cause of action for intentional infliction of emotional distress if the sole basis for the latter cause
of action is the defamatory publication.” (alteration added; emphasis in original)). And courts
likewise dismiss alternative tort claims even where the defamation count does not fail. See, e.g.,
Boyles, 431 So. 2d at 636 (dismissing intentional infliction of emotion distress claim where the
“outrageous conduct” was defamation, and the claim was “merely an imperfect repetition” of the
defamation claim); Kamau v. Slate, No. 4:11cv522, 2012 WL 5390001, at *7–8 (N.D. Fla. Oct. 1,
2012) (allowing the plaintiffs to amend their defamation claim, but dismissing counts for injurious

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falsehood and interference with business reputation because they relied on same event as
defamation claim).
Along the same vein, the single-action rule requires application of Florida’s two-year
defamation statute of limitations, even when a plaintiff does not plead a defamation count. See
MYD Marine Distribs., Inc. v. Donovan Marine, Inc., No. 07-61624-Civ, 2009 WL 701003, at *2–
5 (S.D. Fla. Mar. 16, 2009) (dismissing tortious interference and negligent supervision claims
under the defamation statute of limitations, where the tortious conduct was premised on
defamatory statements); cf. Callaway Land & Cattle Co., 831 So. 2d at 208 (“Thus, if the
defamation count fails, the other counts based on the same publication must fail as well because
the same privileges and defenses apply.” (citation omitted)).
Defendants state dismissal of Plaintiff’s tortious interference claim is required because (1)
it is based on the same underlying facts as a failed defamation count 5; (2) even without considering
the failed defamation claim, the tortious interference claim is still barred because it is premised on
defamatory conduct; and (3) the single-action rule requires application of Florida’s two-year
defamation statute of limitations, which bars the claim. (See Mot. 12–15). Plaintiff’s response is
two-fold. Plaintiff argues: (1) the single-action rule only bars concurrent counts, and where no
defamation claim is pleaded, the single-action rule is inapposite (see Resp. 12–13); and (2) the

5

Plaintiff previously sued over the same conduct in the Eastern District of New York, alleging violations
of Section 1 of the Sherman Act, defamation, and tortious interference under New York law. See Tymar
Distrib. LLC v. Mitchell Grp. USA, LLC, No. 20-cv-719, Mem. & Order [ECF No. 77] at 1–11, filed Mar.
31, 2021 (E.D.N.Y. 2021). The district court dismissed the Sherman Act and defamation claims on the
merits and declined to exercise supplemental jurisdiction over the remaining tortious interference claim.
See id. at 45. Defendants urge the Court to consider the New York district court’s order not as res judicata
but as a predicate to several of Defendants’ arguments. (See Mot. 8). While Plaintiff does not oppose this
request, it highlights the “abstraction” of Defendants’ arguments about the New York case and emphasizes
that Defendants do not argue res judicata. (Resp. 15). As will be shown by the Court’s discussion infra,
the merits of the New York claims are irrelevant to the Court’s analysis.

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single-action rule is inapplicable where the wrong is directed at a business relationship rather than
“a public attack on one’s morals” (Resp. 12 (citation omitted)). Defendants’ position is correct.
The underpinnings of the single-action rule make clear that it does not matter whether the
defamation claim fails, succeeds, or is not brought at all. See Callaway Land & Cattle Co., 831
So. 2d at 208. Strategically not pleading a defamation count to avoid application of the rule is the
type of gamesmanship contemplated by Callaway and would allow a plaintiff to “circumvent[] a
valid defense to defamation by recasting essentially the same facts into several causes of action all
meant to compensate for the same harm.” Id. (alteration added; citations omitted)); see also
Gannett Co. v. Anderson, 947 So. 2d 1, 8–9 (Fla. 1st DCA 2006) (plaintiff could not avoid
defamation statute of limitations by amending claim from describing publication as “false and
defamatory” to one “worded in such a way to portray the plaintiff in a false light.” (alteration
adopted; quotation marks omitted)).

Certainly, “the protections afforded by [defenses to

defamation] cannot be undone by engaging in a semantic exercise such as this.” Id. at 8 (alteration
added).
Plaintiff’s position that the single-action rule does not apply because of the category of
harm alleged is premised on the Restatement of Torts and New York courts’ application of the
Restatement’s position. (See Resp. 10–13). The Restatement distinguishes between categories of
claims premised on false statements; some fall into the category of “intentional interference with
economic relations” or “injurious falsehoods” and others involve “more general harm to
reputation[.]” Callaway Land & Cattle Co., Inc., 831 So. 2d at 209 (alteration added; citations
omitted)). Applying this theory, New York courts distinguish between torts sounding in tortious
interference rather than defamation and ask whether the alleged injury is to a specific business
relationship or merely reputational. See, e.g., Amaranth LLC v. J.P. Morgan Chase & Co., 888

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N.Y.S.2d 489, 71 A.D.3d 40, 47–48 (N.Y. App. Div. 2009). Under New York law, the latter is
usually time-barred, but the former may proceed. See id.
Florida has not adopted the Restatement’s view, and, in fact, Callaway explicitly rejected
the Restatement’s characterization as inconsistent with Florida law. See 831 So. 2d at 209–210.
The Callaway court analyzed slander of title, which is defined as “defamation of property interest,”
and held the defamation two-year statute of limitations applied. See id. at 209 (citation omitted).
In its reasoning, the court specifically acknowledged — and rejected — the Restatement’s position,
stating “the courts of this state do not distinguish defamation of property from defamation of a
person[.]” Id. (alteration added). Quite similarly, Plaintiff cannot avoid application of the statute
of limitations by distinguishing between harm to a specific business relationship and harm to
personal reputation. “A contrary result would allow [Plaintiff] to circumvent the statute of
limitations by simply re-describing the [defamation] action to fit a different category of intentional
wrong.” Id. at 208 (alterations added; citation omitted).
Thus, the single-action rule and the imputed defamation statute of limitations defense both
bar Plaintiff’s tortious interference claim because the claim is premised on defamatory statements
and does not “set forth an independent tort for the recovery of damages[.]” 6 Boyles, 431 So. 2d at
636 (emphasis omitted; alteration added).

6

Although Plaintiff does not raise this argument to avoid dismissal of its tortious interference claim (see
generally Resp.), to the extent it seeks recovery under a tortious interference theory premised on
Defendants’ purported “[e]conomic [p]ressure” that caused Plaintiff to forego its F&W product sales (Resp.
7–8 (alterations added; citing Restatement (Second) of Torts § 767 cmt. c. (Am. Law Inst. 1979)), that
theory is without merit under Florida law. See KMS Restaurant v. Wendy’s Int’l, No. 95-08546-Civ, Order
Affirm. R. & R. [ECF No. 168] filed July 30, 1998 (S.D. Fla. 2009) (entering judgment in favor of the
defendant and holding plaintiff’s tortious interference theory was not recognized under Florida law where
the plaintiff alleged the defendant tortiously interfered with a business relationship by making certain
representations to the plaintiff, thereby causing the plaintiff to terminate his own relationship with his
business partners), aff’d 209 F.3d 722 (Table) (11th Cir. 2000).

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FDUTPA (Count II). Defendants argue that Plaintiff’s FDUTPA claim cannot stand
because the Complaint does not adequately allege consumer harm. (See Mot. 17–18; Reply 7–9).
The Court agrees.
The FDUTPA provides a cause of action for “[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. § 501.204(1) (alterations added). FDUTPA violations can occur
two ways: (1) per se, when “premised on the violation of another law proscribing unfair or
deceptive practice[,]” or (2) a traditional violation involving some other “unfair or deceptive
practice.” Felice v. Invicta Watch Co. of Am., No. 16-cv-62772, 2017 WL 3336715, at *2 (S.D.
Fla. Aug. 4, 2017) (quotation marks and citation omitted).
“An unfair practice is one that offends established public policy and one that is immoral,
unethical, oppressive, unscrupulous or substantially injurious to consumers.” PNR, Inc. v. Beacon
Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (quotation marks and citations omitted). An
act is deceptive “if 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. Off. of the Att’y Gen., Dep’t of Legal Affs., State of Fla., 761 So.
2d 1256, 1263 (Fla. 3d DCA 2000) (alteration added; quotation marks and citation omitted).
According to Defendants, Plaintiff’s FDUTPA claim fails because the Complaint “fails to
allege harm to consumers for purposes of articulating a claim under the FDUTPA.” (Mot. 18
(quotation marks and citation omitted)).

Defendants essentially posit that the FDUTPA’s

definition of consumer harm in this circumstance parallels the definition of consumer harm under
the Sherman Act. (See id.). Thus, they argue, for the same reason Plaintiff’s New York antitrust
claims failed — where Plaintiff was unable to demonstrate anticompetitive effect and,

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consequently, consumer harm — so, too, should its FDUTPA claim. (See Reply 7–9). Plaintiff
asserts that, although its claims were “inadequate to meet Section 1 [of the Sherman Act]’s
‘anticompetitive’ rigors, [Defendants’ conduct here] is not thereby less unfair and deceptive under
[the] FDUTPA.” (Resp. 17 (alterations added)). Yet, Plaintiff fails to support this argument with
any authority. 7

(See Resp. 17). The Court is unconvinced by Plaintiff’s flimsy, conclusory

assertion that the FDUTPA’s definition of consumer harm in a competition case should be
construed any differently from consumer harm under the Sherman Act.
Under the Sherman Act, “[t]o allege actual harm to competition, [p]laintiffs must ‘point to
the specific damage done to consumers in the market.’” GolTV, Inc. v. Fox Sports Latin Am., Ltd.,
No. 16-24431-Civ, 2018 WL 1393790, at *21 (S.D. Fla. Jan. 26, 2018) (alterations added; other
alterations adopted; quoting Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1339 (11th Cir.
2010)). Consumer harm under the Sherman Act parallels consumer harm under the FDUTPA.
See id. (holding plaintiff’s FDUTPA claim could not proceed where its antitrust claim failed to
allege harm to consumers, because “as is the case for antitrust claims, claims under the FDUTPA
require harm to consumers.”).
As a general matter, reduction in intrabrand competition is not an anticompetitive effect
under the Sherman Act. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 890
(2007). This is because economic theory suggests a reduction in intrabrand competition actually
benefits consumers: it “encourages retailers to invest in tangible or intangible services or

7

“The onus is upon the parties to formulate arguments.” Hewlett-Packard Co. v. CP Transp. LLC, No. 1221258-Civ, 2012 WL 4795766, at *2 (S.D. Fla. Oct. 9, 2012) (alteration adopted; quotation marks and
footnote call number omitted; quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995); other citation omitted). “When parties do not fully develop their arguments and support them
with citation to legal authority, the burden upon the [c]ourt is improperly increased.” Id. (alteration added).
It is simply “not sufficient for a party to mention a possible argument in the most skeletal way, leaving the
court to put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (alteration
adopted; citations omitted).?

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promotional efforts that aid the manufacturer’s position against rival manufacturers.” Id. at 889–
93. Indeed, “[a] minimum resale price restraint can also increase consumer welfare by creating
new options ranging from ‘low-price, low-service brands; high-price, high-service; and brands that
fall in between.’” AT&T Mobility LLC v. Phone Card Warehouse, Inc., No. 6:08-cv-1909, 2009
WL 10671271, at *6 (M.D. Fla. Dec. 14, 2009) (quoting Leegin Creative Leather Prods., Inc., 551
U.S. at 890)).
Moreover, as Defendants point out, in situations like this where interbrand competition is
present, “consumers can avoid increased [intrabrand] prices by easily switching to a competing
brand[; thus] no consumer harm has occurred.” (Reply 8 (alterations added; citing Dunnivant v.
Bi-State Auto Parts, 851 F.2d 1575, 1583 (11th Cir. 1988) (“If intrabrand competition exists, this
will afford a safeguard against any attempt to exploit intrabrand market power.”) (quotation marks
and citations omitted)).
Here, Plaintiff alleges only a decrease in intrabrand competition and no other
anticompetitive effect by which the Court can infer consumer harm. (See Compl. ¶¶ 78–79, 92).
But “an antitrust plaintiff must allege injury to competition, not merely to the plaintiff as a
competitor.” GolTV, Inc., 2018 WL 1393790, at *16–17 (citations omitted). Consumers may very
well benefit from the decrease in intrabrand competition. See AT&T Mobility LLC, 2009 WL
10671271, at *6. Moreover, when faced with increased F&W prices, consumers could “switch to
other competing personal-care product brands.” (Reply 8); see Leegin Creative Leather Prods.,
Inc., 551 U.S. at 890–92. Simply put, Plaintiff has not sufficiently alleged consumer harm, and its
FDUTPA claim must be dismissed.
IV.

CONCLUSION

For the foregoing reasons, it is

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ORDERED AND ADJUDGED that Defendants, Mitchell Group USA, LLC and Rivelle
Products, Inc.’s Joint Motion to Dismiss the Complaint [ECF No. 24] is GRANTED. The
Complaint [ECF No. 1] is DISMISSED without prejudice. Plaintiff is granted leave to amend its
Complaint, in accordance with this Order, by September 17, 2021.
DONE AND ORDERED in Miami, Florida, this 8th day of September, 2021.

_______________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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