Allstate Insurance Company v. Auto Glass America, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ALLSTATE INSURANCE COMPANY,

ALLSTATE FIRE AND CASUALTY

INSURANCE COMPANY, ALLSTATE

INDEMNITY COMPANY and

ALLSTATE PROPERTY AND

CASUALTY INSURANCE COMPANY,

Plaintiffs,

v. Case No: 6:18-cv-2184-Orl-41LRH

AUTO GLASS AMERICA, LLC and

CHARLES ISALY,

Defendants.

/

ORDER

THIS CAUSE is before the Court on Defendants’ Motion to Dismiss (“Motion,” Doc. 22)

and Plaintiffs’ Response (Doc. 29). As set forth below, the Motion will be granted in part and

denied in part.

I. BACKGROUND

Plaintiffs are insurance companies that offer insurance policies for, among other things,

automobiles. (Compl., Doc. 1, at 5). Through these insurance policies, Plaintiffs allege that they

have contractual relationships with their insured customers. (Id. at 29). Defendant Auto Glass

America, LLC, and its owner Charles Isaly, are alleged to be in the business of replacing

automobile glass, including replacing damaged windshields. (Id. at 5).

“Florida [law] requires that insurance companies, including Plaintiffs, cover repair or

replacement of damaged windshields of their insureds who have comprehensive coverage, [and

i]nsureds are not required to pay a deductible on these claims.” 1 Gov’t Emps. Ins. Co. v. Clear

Vision Windshield Repair, L.L.C., No. 6:16-cv-2077-Orl-28TBS, 2017 U.S. Dist. LEXIS 47353,

at *2 (M.D. Fla. Mar. 29, 2017) (citing Fla. Stat. § 627.7288); (see also Doc. 1 at 8). The conflict

between these parties results from these windshield replacements. (Doc. 1 at 2).

Plaintiffs claim that Defendants “pressure” Plaintiffs’ insured customers into hiring

Defendants for windshield replacements.2 (Id.). Defendants then allegedly obtain an assignment

of benefits from Plaintiffs’ insured customers “without the insureds’ knowledge or consent.” (Id.

at 4). Defendants, through the assignment of benefits, allegedly invoice Plaintiffs for the

replacements, in accordance with Florida Statute § 627.7288, which provides that insured

customers with comprehensive coverage do not have to pay for windshield replacements. (Id. at

2). Plaintiffs claim that these invoices are for “excessive and unreasonable amounts.” (Doc. 1 at

2). Plaintiffs assert that a typical windshield replacement done by other vendors in Florida cost an

average of $350, whereas Defendants’ invoices average $900. (Id. at 4). Plaintiffs also claim that

in some of the replacement situations, windshield replacement was unnecessary because the

damaged windshield could have been safely repaired at a lower cost. (Id.).

Consequently, Plaintiffs have refused to pay Defendants more than what it believes are

“the competitive and prevailing market rates for windshield replacements.” (Id.). As a result,

Defendants have then purportedly “filed over 1,400 lawsuits” against Plaintiffs to recover the

1 Comprehensive coverage is a type of automobile insurance available in Florida, which is

optional for consumers to purchase. (Doc. 1 at 8).

2 Some of the specific high-pressure tactics that Plaintiffs allege Defendants employ

include, but are not limited to: advertising free windshield replacements to Plaintiffs’ insured

customers; offering incentives to Plaintiffs’ insured customers for windshield replacements (e.g.,

cash for old windshields, gift cards); advertising Original Equipment Manufacturer (“OEM”) glass

when Defendants actually use non-OEM glass; and soliciting Plaintiffs’ insured customers in

parking lots, places of employment, and at their homes. (Doc. 1 at 14–15).

“overages”—the difference between the invoice amount and Plaintiffs’ payment. (Id.; see also

Doc. Nos. 15, 16). At the time of the Complaint, Plaintiffs allege that “[t]he current amount of

overages . . . exceeds $200,000.” (Doc. 1 at 4). And Plaintiffs claim that they have “incurred

litigation costs and fees in 2017 and 2018 alone exceeding $400,000.” (Id. at 5).

Plaintiffs filed the instant lawsuit, which asserts claims for tortious interference, violations

of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), violations of Florida’s Home

Solicitation Sales Act (“FHSSA”), violations of the Federal Trade Commission’s (“FTC”) Rule

Concerning Cooling-off Period for Sales Made at Homes or at Certain Other Locations (“FTC

Rule”), violations of the Florida Motor Vehicle Repair Act (“FMVRA”), and unjust enrichment.

(See generally Doc. 1). Plaintiffs seek injunctive and declaratory relief and request actual damages.

(Id.).

Defendants move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). (Doc. 22 at 1). Pursuant to Rule 12(b)(1), Defendants assert what they

characterize as a facial attack based on lack of Article III standing and a factual attack based on

abstention grounds. (Id. at 3). Defendants also move to dismiss pursuant to Rule 12(b)(6) for failure

to state a claim upon which relief can be granted. (Id. at 2).

II. RULE 12(b)(1)

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss the

claims against it for “lack of subject-matter jurisdiction.” “Attacks on subject matter

jurisdiction . . . come in two forms: ‘facial attacks’ and ‘factual attacks.’” Garcia v. Copenhaver,

Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1260–61 (11th Cir. 1997) (quoting Lawrence v.

Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990)). “Facial attacks challenge subject matter

jurisdiction based on the allegations in the complaint, and the district court takes the allegations as

true in deciding whether to grant the motion.” Morrison v. Amway Corp., 323 F.3d 920, 925 n.5

(11th Cir. 2003). “However, where a defendant raises a factual attack on subject matter

jurisdiction, the district court may consider extrinsic evidence such as deposition testimony and

affidavits.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.

2009). “When jurisdiction is properly challenged, a plaintiff has the burden of showing jurisdiction

exists.” Kruse, Inc. v. Aqua Sun Invs., Inc., No. 6:07-cv-1367-Orl-19UAM, 2008 U.S. Dist. LEXIS

7066 (M.D. Fla. Jan. 31, 2008).

B. Article III Standing Analysis

Article III standing is a threshold inquiry, Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94–95 (1998), so the Court will address it first. In order to bring a case in federal court, a

plaintiff must establish standing under Article III of the United States Constitution. Lujan v. Defs.

of Wildlife, 504 U.S. 555, 559–60 (1992). To establish Constitutional, or Article III, standing, a

plaintiff must show: “1) that [it] personally has suffered an actual or prospective injury as a result

of the putatively illegal conduct; 2) that the injury can be fairly traced to the challenged conduct;

and 3) that the injury is likely to be redressed through court action.” Saladin v. City of

Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987).

Defendants assert that Plaintiffs have failed to establish Article III standing because:

Plaintiffs have not demonstrated that any of their claims fall within coverage of the consumer

protection statutes upon which their claims are based; Plaintiffs have not established that they have

suffered an injury-in-fact; and Plaintiffs have not shown a causal connection between the purported

injury and the complained of conduct.

To establish Article III standing, “it is not enough that a named plaintiff can establish a

case or controversy between himself and the defendant by virtue of having standing as to just one

of many claims he wishes to assert. Rather, each claim must be analyzed separately.” Griffin v.

Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987). Therefore, the Court proceeds to look at whether

Plaintiffs have standing to bring each of the ten Counts they have asserted in the Complaint.3

1. Counts II, III, IV, VII, and VIII—FDUTPA Claims

Counts II, III, IV, VII, and VIII of Plaintiffs’ Complaint are based on alleged violations of

FDUTPA. FDUTPA makes illegal “[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). “FDUTPA authorizes a private cause of action for actual damages by any

‘person’ who has suffered a loss because of a defendant’s violation of the statute.” State Farm

Mut. Auto. Ins. Co. v. Feijoo, No. 1:18-cv-23329-KMM, 2019 U.S. Dist. LEXIS 93343, at *13

(S.D. Fla. June 3, 2019) (quoting Fla. Stat. § 501.211(2)). In 2001, the Florida Legislature amended

FDUTPA’s standing provision by replacing the word ‘consumer’ with the word ‘person.’ Id.

“There is currently a split in authority regarding whether the 2001 amendment extended FDUTPA

to non-consumers,” and neither the Florida Supreme Court nor the Eleventh Circuit has resolved

the split. Id. (collecting cases).

3 However, the Court will not separately address standing as to Count I. Defendants argue

that “[t]he entire Complaint should be dismissed pursuant to Rule 12(b)(1),” but Defendants then

fail to include any argument or legal authority challenging standing as to Count I of the Complaint

(tortious interference) and therefore appear to concede that Plaintiffs have standing on this claim.

(Doc. 22 at 10). The Court agrees; Plaintiffs have standing on their tortious interference claim.

Similarly, the Court will not separately address standing for Plaintiffs’ claim for declaratory

judgment in Count IX because that claim is premised on the alleged violations set forth in the other

nine counts, and Defendants do not challenge standing on the declaratory judgment claim on any

separate basis. Therefore, the Court finds that Plaintiffs also have standing on Count IX and refers

the parties to the analysis set forth regarding the other claims.

Defendants assert that “Plaintiffs are not consumers involved in consumer transactions with

[Defendants],” and therefore are not covered by the protections of FDUTPA. (Doc. 22 at 5).

Plaintiffs claim that the FDUTPA is not so limited. Plaintiffs are correct.

At least three of Florida’s District Courts of Appeal4 have categorically held that “an entity

[i]s not required to be a consumer in order to have standing to bring a FDUTPA claim.”5 Feijoo,

2019 U.S. Dist. LEXIS 93343, at *14 (quoting Caribbean Cruise Line, Inc. v. Better Business

Bureau of Palm Beach Cty., Inc., 169 So. 3d 164, 169 (Fla. 4th DCA 2015) (collecting cases)); see

also Envtl. Mfg. Sols., LLC v. Fluid Grp. Ltd., No. 6:18-cv-156-Orl-40KRS, 2018 U.S. Dist.

LEXIS 131382, at *48–50 (M.D. Fla. May 9, 2018) (holding same). Absent a clear direction from

the Florida Supreme Court on an issue, this Court is “bound to follow” decisions of the state’s

intermediate appellate courts unless there is some persuasive indication that the Florida Supreme

Court would decide the issue differently. Nunez v. Geico Gen. Ins. Co., 685 F.3d 1205, 1210 (11th

Cir. 2012) (citation omitted). Thus, Defendants’ argument that Plaintiffs, as insurers, cannot be

protected by FDUTPA fails.

Defendants’ arguments also fail regarding injury-in-fact and causal connection for the

FDUTPA claims. An injury-in-fact is “‘an invasion of a legally protected interest’ that is ‘concrete

and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). The injury must be

“particularized,” meaning it “must affect the plaintiff in a personal and individual way.” Id.

(quoting Lujan, 504 U.S. at 560 n.1). Additionally, the injury must be “concrete,” meaning “it

4 Florida’s Fifth District Court of Appeal has not ruled on the issue.

5 This Court makes no determination at this stage regarding whether Plaintiffs are actually

“consumers,” as they argue in their Motion, because such a finding is not necessary to establish

standing to bring an FDUTPA claim.

must actually exist.” Id. The Supreme Court in Spokeo emphasized that a plaintiff cannot “allege

a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact

requirement of Article III.” Id. at 1549.

Defendants argue that “the Complaint contains no allegations that any of [Defendants’]

true consumer-customers sustained any damages, actual or otherwise, or were harmed by

Defendants in any way.” (Doc. 22 at 9). Defendants miss the point. FDUTPA does not only protect

consumers, as discussed above. Plaintiffs allege that they were injured by Defendants’ actions in

the following ways.6 Plaintiffs claim that the average invoice for a windshield replacement done

by Defendants is approximately $900, whereas the average for other glass vendors in Florida is

approximately $350. Plaintiffs refusal to pay the full invoice amount has resulted in “overages”

that Defendants are seeking from Plaintiffs, which exceed $200,000. Plaintiffs also state in their

Complaint that they have incurred litigation costs and fees resulting from Defendants’ lawsuits

against Plaintiffs seeking payment of the overages.

While the costs of the instant lawsuit are not a cognizable injury sufficient to establish

standing, Steel Co., 523 U.S. at 107–08, the underlying lawsuits (“over 1,400” of them, (Doc. 1 at

4)) and associated expenses “exceeding $400,000,” (id. at 5), represent an actual concrete and

particularized injury-in-fact. Sliwa v. Bright House Networks, LLC, No. 2:16-cv-235-FtM-

29MRM, 2018 U.S. Dist. LEXIS 52509, at *9 (M.D. Fla. Mar. 29, 2018) (holding that “exposure

to liability in [a] lawsuit constitutes a sufficient injury-in-fact”) (citing Yellow Pages Photos, Inc.

v. Ziplocal, LP, 795 F.3d 1255, 1265 (11th Cir. 2015)). Plaintiffs have sufficiently alleged that

they have been “expos[ed]” to liability in the underlying lawsuits. Id.

6 Plaintiffs also properly allege that its insured customers were injured.

And notably, even if the underlying lawsuits were not a cognizable injury-in-fact, Plaintiffs

suggest that some of the windshield replacements were unnecessary in the first place and that “at

least some of the damaged windshields could have been properly and safely repaired at a much

lower cost.” (Doc. 1 at 4). Thus, Plaintiffs have alleged an injury in the form of overpaying for

windshield replacements when they should have only had to pay for lower repair costs.

Clearly, these purported injuries are fairly traceable to the alleged FDUTPA violations.

Traceability is a “relatively modest” burden, Bennett v. Spear, 520 U.S. 154, 171 (1997), and “even

harms that flow indirectly from the action in question can be said to be ‘fairly traceable’ to that

action for standing purposes.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d

1263, 1273 (11th Cir. 2003); see Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.

1377, 1391 n. 6 (2014) (“Proximate causation is not a requirement of Article III standing, which

requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.”).

The purpose of FDUTPA is to “protect the consuming public and legitimate business

enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive,

or unfair acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.202(2).

Plaintiffs allege that Defendants’ actions violated various provisions of FDUTPA. Plaintiffs then

suggest that but for these actions, Plaintiffs’ insured customers would either not have needed a

windshield replacement—and would have only needed a repair—or would have had their

windshield replaced at a lower cost. Additionally, Plaintiffs allege that but for these disputes about

costs, Defendants would not have sued Plaintiffs for recovery of underpaid invoices. Thus,

Plaintiffs have established the standing element of traceability.

Defendants do not challenge the redressability element of standing, but that element is also

met. “[A] favorable decision on the [FDUTPA] claim[s] will redress the injury to the extent

Plaintiff recovers the monies it paid on the basis of [FDUTPA violations].” Deere Constr., LLC v.

Cemex Constr. Materials Fla., LLC, 198 F. Supp. 3d 1332, 1340 (S.D. Fla. 2016). Plaintiffs have

established Article III standing on the FDUTPA claims, so they will not be dismissed on this basis.

2. Counts V, VI, and X—Non-FDUTPA Claims

As to Counts V, VI, and X, Defendants argue that if Plaintiffs lack standing under

FDUTPA, then Plaintiffs also lack standing on the non-FDUTPA claims because those claims “are

all premised on purported FDUTPA violations.” (Doc. 22 at 10). The Court finds this argument to

be an ineffective attempt at getting these claims dismissed. While Counts VII and VIII do allege

per se violations of FDUTPA as a result of the alleged non-FDUTPA statutory violations, Counts

V, VI, and X allege stand-alone claims independent of FDUTPA and are adequately supported by

alleged facts and legal authority. Count V is based on alleged violations of FHSSA and the FTC

Rule, Count VI is based on alleged violations of FMVRA, and Count X is a common law claim

for unjust enrichment. Defendants even admit that these are “stand-alone claims,” (Doc. 22 at 10

n.10, 11, 12), but then fail to provide any argument supporting dismissal other than the vague

assertion that the claims are premised on FDUTPA violations and therefore should be dismissed

if Plaintiffs lack standing on the FDUTPA claims. (Doc. 22 at 10 n.10, 11, 12). Regardless, at a

minimum, Plaintiffs have alleged the same injury-in-fact for Counts V, VI, and X as they have for

the FDUTPA claims.7 And, for traceability, Plaintiffs allege that if Defendants had not violated

the underlying statutes, then Plaintiffs would not have suffered these injuries. As with the

FDUTPA claims, Plaintiffs’ injuries would be redressed with a payment of damages for monies

7 Plaintiffs may have also alleged additional injuries associated with the non-FDUTPA

claims, such as impacts on its contractual relationships with its insured customers, but the Court

does not need to recite a list of all of Plaintiffs’ alleged injuries as part of the standing analysis.

lost resulting from the statutory violations. Accordingly, Plaintiffs have established Article III

standing on the non-FDUTPA claims.

III. RULE 12(b)(6)

A. Legal Standard

“A pleading that states a claim for relief must contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Pursuant to Federal

Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for “failure to state a

claim upon which relief can be granted.” In determining whether to dismiss under Rule 12(b)(6),

a court accepts the factual allegations in the complaint as true and construes them in a light most

favorable to the non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th

Cir. 2009). Nonetheless, “the tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Furthermore, “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. Generally, in deciding a motion to dismiss,

“[t]he scope of the review must be limited to the four corners of the complaint.” St. George v.

Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).

B. Failure to State a Claim Analysis

“[A]ccept[ing] the factual allegations in the complaint as true and constru[ing] them in a

light most favorable to the [Plaintiffs],” United Techs, 556 F.3d at 1269, Plaintiffs easily survive

Defendants’ 12(b)(6) motion to dismiss on all but two Counts. The Court will analyze each Count

in turn.8

1. Count I—Tortious Interference

The elements of tortious interference are: “(1) the existence of a business relationship [or

contract]9 . . . (2) knowledge of the relationship on the part of the defendant; (3) an intentional and

unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a

result of the breach of the relationship.” Ingenuity, Inc. v. Linshell Innovations Ltd., No. 6:11-cv-

93-Orl-28KRS, 2014 U.S. Dist. LEXIS 40336, at *11 (M.D. Fla. Mar. 25, 2014) (quoting Ethan

Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994)). Plaintiffs have clearly

pleaded each of these elements. Plaintiffs allege that they “currently have and have had contractual

relationships, per their automobile policies, with insureds.” (Doc. 1 at 29). Plaintiffs also allege,

in detail, that Defendants had knowledge of the contractual relationship between Plaintiffs and

their insured customers. (See, e.g., id. at 3, 17, 20–21, 142). Plaintiffs then specify exactly how

they believe Defendants interfered with the relationship,10 (id. at 20–24, 30), and the resulting

damage to Plaintiffs, (id. at 4–5, 30). Plaintiffs have properly pleaded the elements for a claim of

8 Defendants argue that Counts II through X of the Complaint should be dismissed on Rule

12(b)(6) grounds “for the same reasons Plaintiffs lack Article III standing.” (Doc. 22 at 22). As

the Court has outlined above, Plaintiffs have established Article III standing on all Counts, so those

arguments will not be readdressed here.

9 “Except for requiring a contract rather than only a business relationship, the cause of

action of tortious interference with a contract is essentially the same as tortious interference with

a business relationship.” Ingenuity, 2014 U.S. Dist. LEXIS 40336, at *11 (citing Pilkington v.

United Airlines, Inc., 112 F.3d 1532, 1540 (11th Cir. 1997)).

10 Indeed, these allegations appear in the section of the Complaint aptly titled

“[Defendants’] Interference with [Plaintiffs’] Contractual Relationship with its Insureds.” (Doc. 1

at 20).

tortious interference, and—accepting Plaintiffs’ allegations as true at this stage of the

proceedings11—Defendants’ Rule 12(b)(6) motion to dismiss is due to be denied as to Count I.

2. Counts II, III, IV—FDUTPA Claims

As a threshold matter, this Court declines to impose the heightened pleading standard set

forth in Rule 9(b), as Defendants request.12 Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a

party must state with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s mind may be alleged generally.”). “The purpose of

Rule 9(b) is to ‘alert[] defendants to the precise misconduct with which they are charged and

protect[] defendants against spurious charges . . .’” Klusmeier v. Bell Constructors, Inc., 469 F.

App’x 718, 720 (11th Cir. 2012) (quoting Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th

Cir. 2001)). Requiring Plaintiffs to plead their FDUTPA claims with particularity would not

advance this goal as FDUTPA’s elements are already more particularized than those of common

law fraud. Harris v. Nordyne, LLC, No. 14-CIV-21884-BLOOM/Valle, 2014 U.S. Dist. LEXIS

189248, at *12 (S.D. Fla. Nov. 13, 2014). That is, a complaint which states plausible allegations

supporting FDUTPA claims will generally put a defendant on fair notice of the nature of a

11 Defendants’ remaining arguments appear to be asking the Court to either construe

allegations in the Complaint against Plaintiffs or to consider evidence outside the Complaint,

neither of which the Court can do when evaluating a Rule 12(b)(6) motion to dismiss. See United

Techs., 556 F.3d at 1269; St. George, 285 F.3d at 1337.

12 District courts in the Eleventh Circuit “are split on the question of whether a FDUTPA

claim must meet Rule 9(b) pleading requirements.” Incarcerated Entm’t, LLC v. Warner Bros.

Pictures, 261 F. Supp. 3d 1220, 1227 (M.D. Fla. 2017); see also Hummel v. Tamko Bldg. Prods.,

No. 6:15-cv-910-Orl-40GJK, 2015 U.S. Dist. LEXIS 183773, at *6 (M.D. Fla. Nov. 5, 2015).

However, “[c]ertainly, not all FDUTPA claims are required to meet Rule 9(b)’s pleading

standard.” Hummel, 2015 U.S. Dist. LEXIS 183773, at *6. Rather, the FDUTPA cases in which

courts have applied Rule 9(b)’s heightened pleading standard all “sound in fraud.” Blair v.

Wachovia Mortg. Corp., No. 5:11-cv-566-Oc-37TBS, 2012 U.S. Dist. LEXIS 33941, at *9–10

(M.D. Fla. Mar. 13, 2012) (finding “that where the gravamen of the claim sounds in fraud . . . the

heightened pleading standard of Rule 9(b) would apply”). The FDUTPA claims here do not sound

in fraud, so Rule 9(b)’s heightened pleading standard will not be applied.

plaintiff’s claims and the grounds upon which they are based, without the risk of subjecting the

defendant to specious claims. Id. at *12–13. “Because Rule 9(b) does not apply to FDUTPA

claims, its requirements cannot serve as a basis to dismiss Plaintiffs’ FDUTPA claim[s].” Eli Lilly

& Co. v. Tyco Integrated Sec., LLC, No. 13-80371-CIV, 2015 U.S. Dist. LEXIS 191652, at *10

(S.D. Fla. Feb. 9, 2015) (collecting cases).13

Applying Rule 12(b)(6)’s standard to the FDUTPA claims (Counts II, III, IV), Plaintiffs

have satisfied the pleading standard. See Iqbal, 556 U.S. at 678. As previously mentioned,

FDUTPA makes illegal “[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). An unfair practice has been defined as “one that offends established public policy

and one that 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 DCA

2001) (quotation omitted). However, FDUTPA does not apply to “[a]n act or practice required or

specifically permitted by federal or state law.”14 Id. § 501.212(1). The elements comprising a claim

for damages under FDUTPA are: “(1) a deceptive act or unfair practice; (2) causation; and (3)

actual damages.” Carriuolo v. GM Co., 823 F.3d 977, 983 (11th Cir. 2016) (citing City First Mortg.

Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th DCA 2008)).

13 Defendants appear to request that all of the FDUTPA Counts as to Isaly should be

dismissed because he was purportedly not a “direct participant” in the alleged actions. (Doc. 22 at

22). Defendants then pin their argument for dismissal with regards to Isaly on the Rule 9(b)

analysis. As the Court has determined that Rule 9(b) does not apply, this argument is disregarded.

Further, Plaintiffs have alleged that Isaly is the sole member and owner of Defendant business,

and he controls the acts and practices of the business. Plaintiffs go so far as to call Isaly the

“mastermind” of the alleged unfair and deceptive practices. (Doc. 1 at 2). This is enough to clear

the Rule 12(b)(6) hurdle. Paul v. Mayo Clinic, No. 3:15-cv-1244-HES-MCR, 2016 U.S. Dist.

LEXIS 194907, at *8 (M.D. Fla. June 14, 2016) (holding that similar allegations were enough even

under the heightened Rule 9(b) standard).

14 But this is not the situation presented by the Complaint, as Defendants attempt to argue.

Plaintiffs have sufficiently alleged each of the required elements. The deceptive and unfair

acts alleged by Plaintiffs are detailed in the section of the Complaint titled “[Defendants’] Scheme

to Obtain Payment for Non-market Rates.” (Doc. 1 at 14). Plaintiffs allege that Defendants have

been deceptive and unfair in their advertising and solicitation of Plaintiffs’ insured customers by,

among others things: advertising free windshield replacements to Plaintiffs’ insured customers;

offering incentives to Plaintiffs’ insured customers for windshield replacements—cash for old

windshields, gift cards; advertising OEM glass when Defendants actually use non-OEM glass; and

soliciting Plaintiffs’ insured customers in parking lots, places of employment, and at their homes.

Plaintiffs allege that Defendants have also made misrepresentations and omissions to Plaintiffs’

insured customers by: soliciting customers through promises of payment and other incentives that

are not actually paid; misrepresenting Plaintiffs’ working relationship with Defendants; omitting

or failing to disclose important claims information when communicating with Plaintiffs’ insured

customers regarding their windshield replacements; and failing to disclose the lawsuits that

Defendants have filed against Plaintiffs for similar work. Finally, Plaintiffs allege that Defendants

then coerce Plaintiffs’ insured customers to assign their insurance benefits over to Defendants by

having the insured customers sign a form purporting to “simply authorize the work or confirm that

the work was completed.” (Doc. 1 at 18). This is by no means an exhaustive list of the detailed

allegations in the Complaint regarding the FDUTPA claims,15 but it is more than enough to satisfy

the first element for Counts II, III, and IV.

Regarding damages and causation, the Court refers to the standing analysis above, which

details the causation and actual damages alleged by Plaintiffs. Plaintiffs have alleged actual

15 The Court directs Defendants to pages fourteen through twenty of the Complaint for

further details.

damages in the amount of the alleged overages and the costs of the underlying litigation, and

Plaintiffs have alleged that the deceptive and unfair practices by Defendants have caused these

damages. It is not much of an inferential leap16 to come to the conclusion that but for Defendants’

alleged actions, Plaintiffs would not be engaged in over 1,000 lawsuits with Defendants.17 Thus,

Plaintiffs have sufficiently pleaded the elements of an FDUTPA claim to survive a Rule 12(b)(6)

motion for Counts II, III, and IV.

3. Counts VII and VIII—FDUTPA Per Se Violation Claims

Applying Rule 12(b)(6)’s standard to the per se violation FDUTPA claims (Counts VII and

VIII), Plaintiffs have sufficiently stated a claim on these Counts. See Iqbal, 556 U.S. at 678.

Prohibited deceptive and unfair practices under FDUTPA include violations of “[a]ny law, statute,

rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive,

or unconscionable acts or practices.” Id. § 501.203(3)(c). Some federal courts in Florida have

referred to these FDUTPA claims as “per se violations” because they are explicitly provided for

in the statute. See, e.g., Williams v. Delray Auto Mall, Inc., 916 F. Supp. 2d 1294, 1300 (S.D. Fla.

16 See Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.”).

17 See Sliwa, 2018 U.S. Dist. LEXIS 52509, at *9 (holding that “exposure to liability in [a]

lawsuit constitutes a sufficient injury-in-fact”) (citing Yellow Pages, 795 F.3d at 1265). Defendants

suggest that Plaintiffs could have avoided this liability “by simply denying the windshield

replacement claims.” (Doc. 22 at 29). The Court is not convinced by this argument. As Defendants

point out, “insurers have the right to deny claims if their insureds fail to cooperate during the claims

process.” (Id. at 28 (citing Travelers Indem. Co. v. Attorney's Title Ins. Fund, 194 F. Supp. 3d

1224, 1232 (M.D. Fla. 2016)). But there are no facts to support the suggestion that any of Plaintiffs’

insured customers failed to cooperate during the claims process. And even if such facts were

introduced, they would be outside the four corners of the Complaint and therefore could not be

considered by the Court for the purposes of the Rule 12(b)(6) motion. St. George, 285 F.3d at

1337.

2013); Taviere v. Precision Motor Cars, Inc., No. 8:09-cv-467-T-TBM, 2010 U.S. Dist. LEXIS

12493, 2010 WL 557347, at *4 (M.D. Fla. Feb. 12, 2010).

Preliminarily, Defendants argue that Plaintiffs are not consumers and therefore cannot

bring the FDUTPA claims that are based on per se violations (Counts VII and VIII). As the Court

has already determined that Plaintiffs do not have to be consumers to be covered by FDUTPA,

Feijoo, 2019 U.S. Dist. LEXIS 93343, at *14, the only remaining question is whether or not

Plaintiffs can properly assert an action pursuant to the underlying statutes.

Count VII alleges per se violations of FDUTPA based on violations of FHSSA and the

FTC Rule. FHSSA makes it “unlawful for any person to conduct any home solicitation sale”18

without first obtaining a permit. Fla. Stat. § 501.022(1)(a). Similarly, the FTC Rule applies to sales

“of consumer goods or services . . . which [have] a purchase price of $25 or more if the sale is

made at the buyer’s residence or a purchase price of $130 or more if the sale is made at locations

other than the buyer’s residence.” 16 C.F.R. § 429.0(a). Plaintiffs alleged that Defendants violated

FHSSA and the FTC Rule by soliciting Plaintiffs’ insured customers at their homes for windshield

replacements. Plaintiffs also allege that for both FHSSA and the FTC Rule, the statutory price

points were exceeded. Defendants assert that FHSSA and the FTC Rule do not apply because

Plaintiffs’ insured customers did not have to pay for the windshield replacements, and therefore

the statutory price point threshold was not met.

FHSSA only states that it applies to “sale . . . of consumer goods or services with a purchase

price in excess of $25.” Fla. Stat. § 501.021(1). It does not state that the end-user of the consumer

good has to be the one paying the purchase price. Nor do Defendants provide any legal authority

18 “Home solicitation sale” is defined by FHSSA as “a sale, lease, or rental of consumer

goods or services with a purchase price in excess of $25.” Fla. Stat. § 501.021(1).

to the contrary. Similarly, the FTC Rule applies to “[a] sale . . . of consumer goods or services” of

$25 or more and defines “purchase price” as “[t]he total paid or to be paid for the consumer goods.”

16 C.F.R. § 429.0(a), (e). This definition also suggests that it does not matter who ultimately bears

the responsibility for payment. Thus, Count VII will not be dismissed on this basis.

The FDUTPA element of actual damages, discussed above, applies in equal force to Count

VII. As to causation, it is a reasonable inference that but for Defendants’ alleged violations of

FHSSA and the FTC Rule, Defendants would not have obtained the business of Plaintiffs’ insured

customers, and Defendants would not have needed to sue Plaintiffs for the allegedly unpaid

overages. Thus, Plaintiffs have sufficiently pleaded the elements of a FDUTPA claim to survive a

Rule 12(b)(6) motion for Count VII.

Count VIII alleges per se violations of FDUTPA based on violations of FMVRA. FMVRA

requires any “motor vehicle repair shop” to provide customers with “a written repair estimate”

when “the cost of the repair work will exceed $100 to the customer.” Fla. Stat. § 559.905(1).

Similar to their arguments above, Defendants argue that they did not violate FMVRA because it

was Plaintiffs and not their insured customers who would have to pay for the windshield

replacement. Plaintiffs argue that there is an underlying factual question at issue because they

could theoretically require their insured customers to be responsible for amounts not covered by

insurance, and in that case the cost to the customer would exceed the threshold. Neither party

provides any helpful binding legal authority on the issue.

FMVRA applies when “the cost of [the] repair work will exceed $100 to the customer.”

Fla. Stat. § 559.905(1) (emphasis added). The statute defines “customer” as “the person who signs

the written repair estimate or any other person whom the person who signs the written repair

estimate designates on the written repair estimate as a person who may authorize repair work.” Id.

§ 559.903(1). Plaintiffs’ argument is well taken. There may be an underlying factual question about

whether their insured customers could be on the hook for the cost of the windshield replacement.

However, this still would not allow a claim under FMVRA here as the statute only applies to

customers. Plaintiffs are not the customers, per the statutory definition. Thus, Plaintiffs are not

covered by FMVRA, and Count VIII is due to be dismissed.

4. Counts V, VI, and X—Unjust Enrichment

Count V asserts a claim for unjust enrichment based on alleged violations of FHSSA and

the FTC Rule. Count VI is a claim for unjust enrichment based on alleged violations of FMVRA.

And Count X is based on Defendants allegedly replacing windshields that should have been

repaired. The purported bases of the statutory violations are discussed above. A claim for unjust

enrichment must demonstrate three elements: “(1) the plaintiff has conferred a benefit on the

defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the

circumstances are such that it would be inequitable for the defendants to retain it without paying

the value thereof.” Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012) (citing Fla.

Power Corp. v. City of Winter Park, 887 So. 2d 1237, 1241 n. 4 (Fla. 2004)).

These elements are easily satisfied for Counts V and X. Plaintiffs allege that they “have

conferred a benefit on [Defendants], in the form of payments on windshield claims, and

[Defendants] ha[ve] accepted and retained those benefits.” (Doc. 1 at 38, 47). For Count V,

Plaintiffs allege that this benefit has been unjustly conferred because the payments only resulted

from violations of FHSSA and the FTC Rule.19 For Count X, Plaintiffs allege that the payments

were unjustly conferred because the windshields should have been repaired at a lower cost than

19 Each alleged basis for the statutory violations is outlined above and need not be repeated

here.

Plaintiffs paid for replacement. Plaintiffs also set forth detailed factual allegations about why they

believe it would be inequitable for Defendants to retain those payments. (See Doc. 1 at 24–29).

Having properly pleaded the elements for a claim of unjust enrichment in both Counts V and X,

the Motion with regards to those Counts is due to be denied. However, because the underlying

alleged violation of FMVRA is due to be dismissed, as discussed above, Count VI—which is based

on alleged FMVRA violations—will also be dismissed.

5. Count IX—Declaratory Judgment

Count IX of the Complaint asserts a claim for declaratory relief pursuant to the Declaratory

Judgment Act. 28 U.S.C. § 2201. “The federal courts are confined by Article III of the Constitution

to adjudicating only actual ‘cases’ and ‘controversies.’” Malowney v. Fed. Collection Deposit

Grp., 193 F.3d 1342, 1346 (11th Cir. 1999) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)).

“[T]he Declaratory Judgment Act . . . does not broaden federal jurisdiction.” Gulf States Paper

Corp. v. Ingram, 811 F.2d 1464, 1467 (11th Cir. 1987), abrogated on other grounds by King v. St.

Vincent’s Hosp., 502 U.S. 215 (1991). Indeed, Congress explicitly “limited federal jurisdiction

under the Declaratory Judgment Act to actual controversies, in statutory recognition of” the Article

III limitations on federal judicial power. Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d

409, 414 (11th Cir. 1995) (quotation omitted). Accordingly, if a declaratory judgment action fails

to meet the Article III case and controversy requirement, it must be dismissed for want of

jurisdiction. See Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997).

Additionally, parties do not have a right to a declaratory judgment, and district courts have the

discretion to abstain from exercising jurisdiction over such a claim. Ameritas Variable Life Ins.

Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (per curiam) (“The Declaratory Judgment Act

is ‘an enabling Act, which confers a discretion on courts rather than an absolute right upon the

litigant.’ It only gives the federal courts competence to make a declaration of rights; it does not

impose a duty to do so.” (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995))).

Defendants argue that Plaintiffs’ claim for declaratory judgment should be dismissed

because it “is nothing more than a mash-up of all prior counts and is duplicative of the multiple

requests for declaratory relief asserted as part of the FDUTPA claims.” (Doc. 22 at 32).

Additionally, Defendants argue that this claim should be dismissed because the Declaratory

Judgment Act does not allow for adjudication of past conduct. Both of these arguments fail.

“Motions to dismiss made under Rule 12(b)(6) only test the validity of the claim, not its

redundancy; a redundant claim should not be dismissed as long as it is valid.” Wichael v. Wal-

Mart Stores, E., LP, No. 6:14-cv-579-Orl-40DAB, 2014 WL 5502442, *2 (M.D. Fla. Oct. 30,

2014); see also Fed. R. Civ. P. 57 (“The existence of another adequate remedy does not preclude

a declaratory judgment that is otherwise appropriate . . .”). Count IX will not be dismissed simply

because it is a “mash-up” of the other claims. Furthermore, contrary to Defendants’ assertion that

Plaintiffs are only requesting an adjudication regarding past conduct, Plaintiffs plead that

Defendants’ alleged conduct “will continue . . . absent a declaration by this Court.” (Doc. 1 at 46).

Thus, Defendants’ request that Count X be dismissed pursuant to Rule 12(b)(6) will be denied.

IV. ABSTENTION

As a threshold matter, Defendants assert that their abstention argument is a factual attack

under Rule 12(b)(1). Plaintiffs do not dispute Defendants’ asserted legal standard for abstention.

“Whether . . . abstention should be raised under Rule 12(b)(1) or 12(b)(6) is the subject of some

dispute.” Parker v. Judicial Inquiry Comm’n of Ala., 212 F. Supp. 3d 1171, 1174 n.1 (M.D. Ala.

2016); see also In re Daewoo Motor Co., Ltd. Dealership Litig., No. MDL-1510, 2005 U.S. Dist.

LEXIS 43197, at *20 n.11 (M.D. Fla. Jan. 6, 2005) (“Some courts have indicated that a motion to

dismiss on comity and/or abstention grounds falls within the rubric of a Rule 12(b)(1) motion.

Other courts have indicated that a motion to dismiss on abstention grounds does not fit precisely

within Rule 12(b)(1).” (citing cases) (citations omitted)). This Court finds it unnecessary to

determine exactly where the current abstention argument fits because “it is clear that the rules

governing dismissal for subject matter jurisdiction are generally accepted as the guidelines for a

motion to dismiss on comity and/or abstention grounds.” In re Daewoo, 2005 U.S. Dist. LEXIS

43197, at *20 n.11 (noting that “presumption in favor of plaintiff under Rule 12(b)(6) motion is

inapplicable on motion to dismiss on grounds of comity which addresses court’s subject matter

jurisdiction”). Additionally, even under a Rule 12(b)(6) standard, the Court may take judicial

notice of pleadings and orders from another action. Frame v. United States, No. 3:10-cv-360-J-

34JRK, 2010 U.S. Dist. LEXIS 141894, at *11-13 (M.D. Fla. Dec. 30, 2010). Thus, the Court does

not proceed with the following analysis precisely under the Rule 12(b)(1) or Rule 12(b)(6)

framework but rather weighs the facts without a presumption in favor of Plaintiffs and takes proper

judicial notice of the underlying state court lawsuits.

A. Colorado River Abstention

Defendants make an argument for abstention under two separate doctrines. First,

Defendants argue that this Court should abstain from adjudicating this case pursuant to Colorado

River abstention.20 Colo. River Water Conser. Dist. v. United States, 424 U.S. 800 (1976).

Plaintiffs argue that abstention under Colorado River is not warranted.

20 Defendants do not appear to ask alternatively for a stay of this case if the Court declines

to abstain entirely. However, as the Court finds below that abstention is not warranted for any

period of time, it is unnecessary to consider whether a stay would be an appropriate remedy. See

Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 998 (11th Cir. 2004) (discussing

the error of a District Court in dismissing an action when it should have simply stayed the action

pending the outcome of the state court proceedings).

“Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Id.

Under the Colorado River doctrine, “abstention is an extraordinary and narrow exception to the

duty of a District Court to adjudicate a controversy properly before it.” Id. That is, “[a]bdication

of the obligation to decide cases can be justified under this doctrine only in . . . exceptional

circumstances.” Id. Furthermore, “[c]onsiderations supporting the other abstention doctrines are

‘weightier’ than the considerations supporting Colorado River abstention. Therefore, Colorado

River abstention is permissible in fewer circumstances than are the other abstention doctrines,

which themselves carve out only slender exceptions to the robust duty to exercise jurisdiction.”

Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1331 (11th Cir. 2004) (quoting Colorado

River, 424 U.S. at 818).

“[T]he Colorado River analysis is limited to situations in which federal and state

proceedings involve ‘substantially the same parties and substantially the same issues.’” Baker v.

Warner/Chappell Music, Inc., 759 F. App’x 760, 763 (11th Cir. 2018) (quoting Ambrosia, 368

F.3d at 1330). The Eleventh Circuit has deduced seven factors that must be weighed in determining

whether Colorado River abstention is permissible: “(1) whether the state or federal court has

assumed jurisdiction over any property at issue; (2) the relative inconvenience of the federal forum;

(3) the likelihood of piecemeal litigation; (4) the order in which the courts obtained jurisdiction;

(5) whether state or federal law will be applied; (6) whether the state court can adequately protect

the parties’ rights; and (7) the vexatious or reactive nature of either the federal or the state

litigation.”21 Id. (quotations omitted).

21 The Eleventh Circuit has in some cases also considered an eighth factor under the

Colorado River doctrine—“whether the concurrent cases involve a federal statute that evinces a

policy favoring abstention.” Willson v. Bank of Am., N.A., 684 F. App’x 897, 900 (11th Cir. 2017).

However, the instant case does not involve any federal statutes other than the Declaratory

Judgment Act. Thus, this factor need not be considered in this analysis.

Prior to an analysis of the factors set forth by the Eleventh Circuit, this Court considers

whether this case and the underlying state court actions “involve ‘substantially the same parties

and substantially the same issues.’” Baker, 759 F. App’x at 763 (quoting Ambrosia, 368 F.3d at

1330). Plaintiffs have made a reasonable argument that both different parties and different issues

are present between the federal and state actions. For example, the state actions do not involve all

of the Plaintiff parties in this case nor do they involve Isaly as a defendant. The state court actions

also each involve only a single windshield replacement claim, whereas the instant action focuses

on the underlying alleged conduct of Defendants. Nonetheless, as Colorado River does not require

the relevant federal and state cases to share “identical parties, issues, and requests for relief,” this

Court will look to the seven factors presented by the Eleventh Circuit to determine whether

abstention under the Colorado River doctrine is permissible. Ambrosia, 368 F.3d at 1329.

The first factor weighs against abstention, as no property is involved in this case. Id. at

1332 (“Because the relevant cases are not proceedings in rem, neither court has jurisdiction over

property, and the first Colorado River factor does not favor abstention.”).

The second factor—relative inconvenience of the federal forum—also weighs against

abstention. “This factor should focus primarily on the physical proximity of the federal forum to

the evidence and witnesses.” Id. Here, all of the pending state actions identified by the parties are

in various Florida state courts. When “the federal forum and the state forum are equally

convenient[,] this factor . . . cuts against abstention.” Jackson-Platts v. GE Cap. Corp., 727 F.3d

1127, 1141 (11th Cir. 2013).

The third factor—the likelihood of piecemeal litigation—weighs heavily against abstention

and is potentially the most persuasive factor here. Ambrosia, 368 F.3d at 1332 (noting that “no one

factor is necessarily determinative,” and that “the weight to be given to any one factor may vary

greatly from case to case” (quoting Colorado River, 424 U.S. at 818; Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983))); Moorer v. Demopolis Waterworks & Sewer

Bd., 374 F.3d 994, 997 (11th Cir. 2004). While the parties disagree on the precise number of small

claims cases pending in state courts throughout Florida, the parties agree that they number over

1,000. And there appears to be no end in sight to the continued filing of these cases unless and

until the underlying issues between the parties are resolved. This Court is better situated to analyze

all of the underlying issues between the parties than state court judges scattered throughout the

state, each handling only a handful of the small claims cases. Consol. Am. Ins. Co. v. Hinton, 845

F. Supp. 1515, 1520 (M.D. Fla. 1994) (finding that the third factor weighed against abstention

when the federal action was “more comprehensive” and involved more parties than the state

action).

The fourth factor—the order in which the courts obtained jurisdiction—also weighs

slightly against abstention, though it is not determinative. The Supreme Court clarified that this

factor “should not be measured exclusively by which complaint was filed first, but rather in terms

of how much progress has been made in the two actions.” Ambrosia, 368 F.3d at 1333 (quoting

Moses, 460 U.S. at 21). Here, the state court lawsuits were clearly filed first, but it is unclear how

much progress has been made in those proceedings. Furthermore, it appears that there is a

continuing risk of additional lawsuits being filed in state court if the underlying disputes between

the parties are not resolved. When “[n]o significant progress has been made in either action[, this

factor] does not weigh in favor of dismissal.” Am. Bankers Ins. Co. v. First State Ins. Co., 891 F.2d

882, 885–86 (11th Cir. 1990). As it is Defendants’ burden to demonstrate that the state court cases

referenced have progressed to a point that justifies abstention, Ambrosia, 368 F.3d at 1333—and

they have failed to do so—this factor weighs against abstention. Am. Bankers, 891 F.2d at 885–

86.

The fifth factor—whether state or federal law will be applied—does not favor abstention.

“[This] factor . . . ‘favors abstention only where the applicable state law is particularly complex or

best left for state courts to resolve.’” Baker, 759 F. App’x at 764 (quoting Jackson-Platts, 727 F.3d

at 1143). That is not the situation presented here. This Court has handled numerous FDUTPA cases

and “is fully competent to adjudicate” the instant case. Hall v. Sargeant, No. 9:18-CV-80748-

BLOOM/REINHART, 2018 U.S. Dist. LEXIS 171099, at *17 (S.D. Fla. Oct. 1, 2018).22

The sixth factor—adequate protection of the parties’ rights—is neutral. “The fact that both

forums are adequate to protect the parties’ rights merely renders this factor neutral on the question

of whether the federal action should be dismissed. This factor will only weigh in favor or against

dismissal when one of the forums is inadequate to protect a party’s rights.” Noonan S., Inc. v. Cty.

of Volusia, 841 F.2d 380, 383 (11th Cir. 1988) (emphasis in original). Here, Defendants only state

that Florida courts are adequate to protect the parties’ interests. This Court agrees, but the federal

forum is equally adequate to protect the parties’ rights. As both forums are adequate to protect the

rights asserted by each of the parties, this factor is neutral. Id.

The seventh factor is neutral as well. With this factor, the Court may consider “the

vexatious or reactive nature of either the federal or the state litigation.” Lops v. Lops, 140 F.3d

927, 961 (11th Cir. 1998) (quoting Moses, 460 U.S. at 18 n.20). While Defendants suggest that it

is “obvious” that the instant action is reactive to Plaintiffs’ lack of satisfaction with the state court

22 Hall also notes that “the presiding District Judge served on the Florida state bench from

1995 to 2014.” 2018 U.S. Dist. LEXIS 171099, at *17 n.7. Similarly, the presiding District Judge

in the instant case served as a Florida Circuit Court Judge prior to his appointment to the federal

bench.

proceedings, they provide no evidence of this. (Doc. 22 at 15). Even if this statement is true—that

Plaintiffs are displeased with the results of the state court proceedings—it does not necessarily

follow that the instant case should be barred. Clay v. AIG Aero. Ins. Servs., 61 F. Supp. 3d 1255,

1265 (M.D. Fla. 2014) (finding that a previous unfavorable ruling in state court does not alone

render a case reactive or vexatious). As “Plaintiffs have stated what appear on the face of

their . . . Complaint to be legitimate claims for relief . . . [t]he Court finds nothing in the record to

suggest that Plaintiffs filed this lawsuit for any improper purpose. As such, this factor does not

warrant abstention.” Id.

“After carefully weighing the Colorado River factors and extending, as [this Court] must,

a heavy bias in favor of exercising jurisdiction,” the Court finds it inappropriate to abstain from

adjudicating this case on the basis of the Colorado River doctrine. Ambrosia, 368 F.3d at 1332.

Therefore, the Court will not abdicate its “virtually unflagging obligation” to exercise jurisdiction,

Colorado River, 424 U.S. at 813, 817, and Defendants’ request for the Court to abstain on this

basis will be denied.

B. Brillhart Abstention

Next, Defendants argue that this Court should abstain and decline jurisdiction pursuant to

the Brillhart abstention doctrine. Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942). Plaintiffs

counter by arguing that Brillhart abstention does not apply to a mixed action for claims brought

pursuant to the Declaratory Judgment Act and other independent claims.

This Court finds that Brillhart abstention—which applies to claims brought pursuant to the

Declaratory Judgment Act—is in fact inapplicable here. PPG Industries, Inc. v. Continental Oil

Co., 478 F.2d 674, 679 (5th Cir. 1973) is dispositive on this issue.”* The parties have not provided

any legal authority to the contrary nor has the Court independently identified such. Therefore,

because other Counts in the Complaint that are not brought pursuant to the Declaratory Judgment

Act “each state a claim upon which relief can be granted . . . Brillhart abstention is not applicable

to the mixed claims pled here.” Hall, 2018 U.S. Dist. LEXIS 171099, at *15. Therefore,

Defendants’ request for abstention under this doctrine will also be denied.

V. CONCLUSION

In accordance with the foregoing, it is ORDERED and ADJUDGED that:

1. Defendants’ Motion to Dismiss (Doc. 22) is GRANTED in part and DENIED in

part.

2. Counts VI and VIII are DISMISSED with prejudice.

3. Defendants’ Motion to Dismiss (Doc. 22) is DENIED in all other respects.

DONE and ORDERED in Orlando, Florida on September 30, 2019.

a CARLOS E. MENDOZA |

UNITED STATES DISTRICT JUD@E

Copies furnished to:

Counsel of Record

3 Decisions of the Fifth Circuit entered before October 1, 1981, are binding on the courts

of the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).