# Garrett-Alfred v. Facebook, Inc.

> District Court, M.D. Florida · May 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10107570

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107570

## How later opinions describe it (automated extraction)

- holding that amendment would be futile where plaintiffs claim were preempted and thereby legally barred

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DEBRYNNA GARRETT-ALFRED et al.,

Plaintiffs,

v. Case No. 8:20-cv-0585-KKM-CPT

FACEBOOK, INC. and COGNIZANT
TECHNOLOGY SOLUTIONS U.S.
CORPORATION,

Defendants.
____________________________________/

ORDER
This cause comes before the Court on Defendant Facebook’s Motion to Dismiss
(Doc. 35) and Defendant Cognizant’s Motion to Dismiss1 (Doc. 36). Plaintiffs oppose
both motions (Docs. 55 & 56) and request attorneys’ fees under the Florida Deceptive
and Unfair Trade Practices Act (Doc. 56). Facebook opposes their request for fees.
(Doc. 60). For the following reasons, both motions to dismiss are granted in full and
Plaintiffs’ request for attorneys’ fees is denied.

1 Defendant Cognizant’s motion included a Motion to Compel Arbitration as to Plaintiffs Jessica
Young, Daniel Walker, and Dawnmarie Armato. (Doc. 35). The Court granted the motion and stayed
proceedings pending arbitration as to the action between Cognizant and those plaintiffs. (Doc. 47).
Accordingly, this Order does not address the claims between them. The Court uses the term
“Plaintiffs” to refer instead to the remaining plaintiffs in the action whose claims have not been stayed
pending arbitration.
I. Background2
This case arises from Plaintiffs’ employment with Cognizant Technology

Solutions U.S. Corporation (Cognizant), where they performed content moderation
services for Facebook, Inc. (Doc. 23 at 2–3). Cognizant is a professional services vendor
incorporated under the laws of Delaware with headquarters in Texas, and Facebook is
a social media and technology company incorporated in Delaware and headquartered

in California. (Doc. 23 at 6). As most Americans know, Facebook is a social networking
platform that enables people to connect and share content across the internet. (Doc. 23
at 5–6). The named plaintiffs, who were living in Arizona or Florida while employees
of Cognizant, bring this putative class action claim on behalf of all Florida and Arizona

citizens who performed content moderation as employees of Cognizant within the last
three years. (Doc. 23 at 20).
Facebook’s administration of social networking platforms includes content
moderation. (Doc. 23 at 6). Content moderation involves reviewing media content

reported by platform users and removing content that violates the platform’s terms of
use. (Doc. 23 at 6). Cognizant contracts with Facebook as a third-party vendor to handle
Facebook’s content moderation. (Doc. 23 at 3). Plaintiffs, as employees of Cognizant,
were responsible for reviewing graphic content such as murders, tortures, child

2 The facts are derived from the allegations within the amended complaint, (Doc. 23), which the Court
must accept as true in ruling on the instant motions to dismiss. See Linder v. Portocarrero, 963 F.2d 332,
334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d
989, 994 (11th Cir. 1983).
pornography, and rapes. (Doc. 23 at 17–18). In their amended complaint, Plaintiffs
detail the risks of repeated exposure to images of extreme violence and support their

claims by citing numerous studies conducted by scientific organizations and
government task forces. (Doc. 23 at 9–10). These studies specifically highlight that
psychological trauma may result in both mental and physical symptoms as well as
greater risk of substance abuse. (Doc. 23 at 11). As a result of their employment,

Plaintiffs allege that they are at an “increased risk of developing serious mental health
injuries, including but not limited to, PTSD [posttraumatic stress disorder], and
associated physical injuries.” (Doc. 23 at 27, 29).
Facebook helped create the Technology Coalition, a group that crafts industry

standards for minimizing harm to content moderators. (Doc. 23 at 12–13). Some of the
practices recommended to support content moderators include using clear terms in
interviews and allowing candidates to ask questions before hiring; limiting exposure and
providing counseling sessions; and permitting breaks and time off as a response to

trauma. (Doc. 23 at 14). Additionally, these guidelines advise internet sites contracting
with third-party vendors to clearly outline procedures to limit harmful exposure to
graphic content. (Doc. 23 at 14). Plaintiffs allege that neither Facebook or Cognizant
adhered to these standards. (Doc. 23 at 14–16).

Specifically, Plaintiffs allege that Cognizant concealed from employees the
danger of viewing graphic images. (Doc. 23 at 22–23). Cognizant did not conduct
psychological evaluations on new hires and did not provide real counseling services to
employees. (Doc. 23 at 15–16). Facebook pushed high standards for accuracy and
timeliness, and Cognizant, in turn, placed pressure to perform on its employees. (Doc.

23 at 15–16). Facebook and Cognizant also demanded content moderators sign non-
disclosure agreements (NDAs), which prohibited them from speaking about the
content that they viewed. (Doc. 23 at 16). Further, Plaintiffs allege that Cognizant
advertised the content moderator jobs as “prestigious career[s] in high technology that

simply required them to become knowledgeable about ‘leading social media products
and community standards,’ to ‘assist our community and help resolve inquiries
empathetically, accurately and on time,’ and to ‘make well balanced decisions and
personally driven [sic] to be an effective advocate for our community.’” (Doc. 23 at 23).

II. Motions to Dismiss for Lack of Personal Jurisdiction with Regard to
Arizona Plaintiffs’ Claims
First, both Facebook and Cognizant (collectively referred to as Defendants)
argue that Plaintiffs have failed to establish that this Court has personal jurisdiction over
them with respect to the claims of the Arizona plaintiffs—Michael Wellman and
Alexander Roberts. Because the Arizona plaintiffs’ claims do not arise from or relate to
Defendants’ contacts with Florida, Defendants’ motions to dismiss for lack of personal

jurisdiction are granted.
Plaintiffs argue that this Court should exercise jurisdiction over the Arizona
plaintiffs’ claims because personal jurisdiction principles do not bar nationwide class
action suits with non-resident class members. For support, Plaintiffs cite the Seventh
Circuit’s decision in Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020), and
the D.C. Circuit’s decision in Molock v. Whole Foods Market Group., Inc., 952 F.3d 293,

300 (D.C. Cir. 2020), for the proposition that Bristol-Myers Squibb Co. v. Superior Court of
California, 137 S. Ct. 1773 (2018), does not bar the exercise of specific jurisdiction over
defendants when the named non-resident class members’ contacts with defendants do
not arise from or relate to conduct occurring within the state. (Doc. 55 at 2–4).

Plaintiffs’ reliance on these cases, however, is misplaced because those cases addressed
personal jurisdiction over unnamed class members.
Named plaintiffs in a putative class action suit must comply with personal
jurisdiction requirements. Story v. Heartland Payment Sys., LLC, 461 F. Supp. 3d 1216,

1231 (M.D. Fla. 2020); see also Mussat, 953 F.3d at 447–48 (“We see no reason why
personal jurisdiction should be treated any differently from subject-matter jurisdiction
and venue: the named representatives must be able to demonstrate either general or
specific personal jurisdiction, but the unnamed class members are not required to do

so.”); cf. A&M Geber Chiropractic LLC v. Geico Gen. Ins. Co., 925 F.3d 1205, 1211 (11th
Cir. 2019) (applying standing requirements to named plaintiffs); Allapattah Servs. v.
Exxon Corp., 333 F.3d 1248, 1254 (11th Cir. 2003) (applying subject matter jurisdictional
requirements to named parties), aff’d 545 U.S. 546, 566–67 (2005). Accordingly, the

named plaintiffs in this action must show that the Court has personal jurisdiction over
the Defendants.
To have personal jurisdiction over a party, a federal court sitting in diversity must
determine if the state’s long-arm statute is satisfied and ensure that the exercise of
jurisdiction comports with the Due Process Clause of the Fourteenth Amendment.

Waite v. All Acquisition Corp., 901 F.3d 1307, 1312 (11th Cir. 2018). Under Florida’s long-
arm statute, a defendant is subject to either specific jurisdiction, which applies if the
claim arises out of or is related to defendant’s contacts with Florida, or general
jurisdiction, which applies regardless of whether the claims involve the defendant’s

activities in Florida if the defendant engages in substantial and not isolated activity in
Florida. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203–04 (11th Cir. 2015).
Personal jurisdiction over a defendant comports with the Due Process Clause of the
Fourteenth Amendment if the defendant’s affiliations with the State are “so ‘continuous

and systematic’ as to render them essentially at home in the forum State,” id. at 1204
(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)), or the
defendant has such contacts with the State that “maintenance of the suit is reasonable
in the context of our federal system of government and does not offend traditional

notions of fair play and substantial justice.” Ford Motor Co. v. Montana Eighth Jud. Dist.
Ct., 141 S. Ct. 1017, 1024 (2021) (quotations omitted).
“‘[A] corporation’s operations in a forum other than its formal place of
incorporation or principal place of business’ will be ‘so substantial and of such a nature

as to render the corporation at home in that State’ only in ‘exceptional’ cases.”
Carmouche, 789 F.3d at 1204 (quoting Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)).
Cognizant is a Delaware corporation with its principal place of business in Texas;
Facebook is a Delaware corporation with its headquarters in California. The only alleged
connection of either corporation to Florida is the operation of Cognizant’s Tampa

content moderation site. (Doc. 23 at 6). These affiliations are not continuous and
systematic enough to render Defendants at home in Florida. Clearly, Arizona plaintiffs
have not established general jurisdiction over Cognizant or Facebook, nor do they
attempt to argue otherwise. See Waite, 901 F.3d at 1316 (“Because Florida’s long-arm

provision ‘extends to the limits on personal jurisdiction imposed by the Due Process
Clause,’ we ‘need only determine whether the district court’s exercise of jurisdiction
over [Union Carbide] would exceed constitutional bounds.’” (quoting Carmouche, 789
F.3d at 1204)).

Further, the Arizona plaintiffs have not established that this Court has specific
jurisdiction over Facebook or Cognizant. “In specific personal jurisdiction cases, we
apply the three-part due process test, which examines: (1) whether the plaintiff’s claims
‘arise out of or relate to’ at least one of the defendant’s contacts with the forum; (2)

whether the nonresident defendant ‘purposefully availed’ himself of the privilege of
conducting activities within the forum state, thus invoking the benefit of the forum
state’s laws; and (3) whether the exercise of personal jurisdiction comports with
‘traditional notions of fair play and substantial justice.’” Louis Vuitton Malletier, S.A. v.

Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013) (citing Burger King v. Rudzewicz, 471 U.S.
462, 472–75 (1985)). The Arizona plaintiffs’ claims arise from Cognizant’s operation of
the Phoenix content moderation site as a third-party vendor for Facebook and
Facebook’s alleged continued control of and provision of equipment to that site.
Defendants’ Florida contacts are the operation of the Tampa content moderation site.

The Arizona plaintiffs’ claims are not sufficiently related to the operation of the Tampa
content moderation site, so an exercise of jurisdiction over Defendants with respect to
the Arizona plaintiffs’ claims would violate the Due Process Clause of the Fourteenth
Amendment.3

The allegations in the Amended Complaint do not demonstrate personal
jurisdiction over Defendants with regards to the Arizona plaintiffs’ claims, and
accordingly, the motions to dismiss the Arizona plaintiffs’ claims are granted.
III. Motions to Dismiss for Failure to State a Claim for Relief

Defendants also move to dismiss Plaintiffs’ Amended Complaint for failure to
state a valid claim for relief. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss
for failure to state a claim, a plaintiff must plead sufficient facts to state a claim that is
“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 554, 570 (2007)). A claim is plausible on its face when a plaintiff
“pleads factual content that allows the court to draw the reasonable inference that the

3 Even under the broadest reading of “arising out of or related to” in the Supreme Court’s recent
opinion in Ford Motor Co., the Arizona plaintiffs still fail. See 141 S. Ct. at 1026–27. In Ford Motor Co.,
Ford’s contacts with the forum state included immense amounts of advertising, multiple franchises
and dealerships that sold and serviced Ford vehicles, and shipment of replacement parts, to name a
few. Id. at 1028. These contacts are exponentially greater than Cognizant’s contact with Florida: a
single content moderation site. “Related to” in Ford meant a substantial connection between its
contacts with the State and the plaintiffs’ claims. Id. Here, none of Cognizant’s activities in Florida are
linked to the operation of the Arizona content moderation site, the basis of the Arizona plaintiffs’
claims.
defendant is liable for the misconduct alleged.” Id. When considering the motion, the
court accepts all factual allegations of the complaint as true and construes them in the

light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). Courts should limit their “consideration to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and matters judicially noticed.”
La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

A. Count I: Fraudulent Concealment
In Count I, Plaintiffs allege that Defendant Cognizant deliberately concealed or
misrepresented the facts of a known danger, namely the dangers of exposure to “highly
toxic, unsafe, and injurious content while providing content moderation services.”

(Doc. 23 at 22). Although the Amended Complaint names both fraudulent (or
deliberate) concealment and fraudulent misrepresentation, the Plaintiffs oppose the
motion to dismiss Count I under only a fraudulent concealment theory. The Court
therefore construes the amended complaint as alleging only this latter kind of tort;

alternatively, the Court finds that Plaintiffs have abandoned the fraudulent
misrepresentation theory of liability by failing to address it in its response. See Hooper v.
City of Montgomery, 482 F. Supp. 2d 1330, 1334 (M.D. Ala. 2007) (De Ment, J.)
(concluding that a plaintiff’s failure to respond to claims in a defendant’s motion to

dismiss resulted in dismissal of those claims as abandoned); cf. Resolution Tr. Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district
court to distill every potential argument that could be made based upon the materials
before it . . . .”).
In addition to the ordinary pleading requirements, a plaintiff must satisfy Rule

9’s heightened pleading standard when alleging deliberate concealment because it
sounds in fraud. Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake.”); see also Koski v.
Carrier Corp., 347 F. Supp. 3d 1185, 1196 (S.D. Fla. 2017) (“The . . . claim for fraudulent

concealment is subject to the heightened pleading requirements of Federal Rule of Civil
Procedure 9(b).”); Kish v. A.W. Chesterton Co., 930 So. 2d 704, 707 (Fla. 3d DCA 2006)
(defining “fraud” to include a knowing concealment). Rule 9(b) “requires a complaint
to set forth: (1) precisely what statements or omissions were made in which documents

or oral representations; (2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not making) them; (3) the content
of such statements and the manner in which they misled the plaintiff, and; (4) what the
defendant obtained as a consequence of the fraud.” In re Galectin Therapeutics, Inc. Secs.

Litig., 843 F.3d 1257, 1269 (11th Cir. 2016).
Plaintiffs’ allegations that Cognizant deliberately concealed the dangers of their
jobs by failing to disclose the risks to them and by requiring them to sign broad NDAs
are insufficient under Rules 8 and 9. Under Florida law, “the elements of a fraudulent

concealment claim are as follows: (1) the [defendant] concealed or failed to disclose a
material fact; (2) the [defendants] knew or should have known the material fact should
be disclosed; (3) the [defendants] knew their concealment of or failure to disclose the
material fact would induce the plaintiffs to act; (4) the [defendants] had a duty to
disclose the material fact; and (5) the plaintiffs detrimentally relied on the

misinformation.” Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 691 (Fla. 2015).
First, under the heightened pleading standard of Rule 9(b), Plaintiffs must plead
with particularity the “omissions [that] where made in which documents or oral
representations.” In re Galectin, 843 F.3d at 1269. While “by definition, Plaintiffs cannot

point to one particular statement because an omission is a non-statement,” In re Takata
Airbag Prods. Liab. Litig., 464 F. Supp. 3d 1291, 1303 (S.D. Fla. 2020) (Moreno, J.),
Plaintiffs must still allege specific facts or materials that were concealed and must plead
more than “conclusory allegations.” See, e.g., Douse v. Boston Sci. Corp., 314 F. Supp. 3d

1251, 1263 (M.D. Fla. 2018) (Chappell, J.) (finding too vague an allegation that the
defendant concealed “that the [product] was not safe” because it failed to allege specific
facts that were concealed); Padilla v. Porsche Cars N. Am., Inc., No. 18-24988-CIV-
MORENO, 2020 WL 1472301, at *3 (S.D. Fla. 2020) (Moreno, J.) (dismissing a

fraudulent concealment tolling claim where complaint alleged that the defendants failed
to disclose material information but did not point to precise statements, documents, or
misrepresentations or how any statements were misleading). Here, Plaintiffs do not
allege specific information related to the dangers of content moderation that Cognizant

withheld like, for example, safety reports. See Dugas v. 3M Co., 101 F. Supp. 3d 1246,
1254–55 (M.D. Fla. 2015) (Davis, J.) (allowing claim that one defendant knew of report
that its products did not protect against asbestos but dismissing claims against
defendants without comparable allegations). And “bare contentions” that Cognizant
concealed from the Plaintiffs the dangers of content moderation are not enough,

particularly when those allegations fail to identify who should have warned them, when
they should have been warned, and where they should have been warned. See Greenberg
v. Miami Children’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1073 (S.D. Fla. 2003)
(Moreno, J.) (“Yet, their bare contention that the intent to patent was fraudulently

concealed is not sufficient, because this intent was not accompanied by any time and
place details.”).
Plaintiffs’ allegations that Cognizant required broad NDAs similarly do not
satisfy the Rule 9(b) pleading standard because they have not alleged what the NDAs

prohibited the Plaintiffs from discussing and with whom, where, and when. Plaintiffs’
allegations that Cognizant “deliberately concealed and misrepresented these dangers to
Plaintiffs” are “legal conclusions rather than empirically provable facts,” Douse, 314 F.
Supp. 3d at 1263, and do not satisfy Rule 9(b).

Further, Plaintiffs allegations contradict their claim that Cognizant concealed the
dangers of content moderation. Plaintiffs assert that “[i]t is well known that exposure
to images of graphic violence can cause debilitating injuries, including PTSD.” (Doc.
23 at 9). Plaintiffs also describe with detail the numerous studies and available research

on the psychological dangers posed by exposure to graphic images, and they do not
allege that they were unaware that they would be reviewing these kinds of images as
content moderators. By Plaintiffs own allegations, any danger was then fully accessible
to them through due diligence. See Greenberg, 264 F. Supp. 2d at 1073–74 (dismissing a
claim for fraudulent concealment where plaintiffs could have discovered an intent to

patent by a “simple phone inquiry”). Facts are not deliberately concealed when they
were reasonably accessible to the plaintiffs. Id. (citing In re Ford Motor Co. Bronco II Prod.
Liab. Litig., 982 F. Supp. 388, 396–97 (E.D. La. 1997) (“Claims of fraudulent
concealment generally require that plaintiff allege and prove that defendant wrongfully

concealed information and that plaintiff did not have actual or constructive knowledge
of the information, and could not have learned of the information through the exercise
of due diligence.”)); see also West Brook Isles Partner’s 1, LLC v. Com. Land Title Ins. Co.,
163 So. 3d 635, 639 (Fla. 2d DCA 2015) (“Where there was no active concealment and

a party with the exercise of due diligence could have discovered the facts, the statute of
limitations is not tolled.”). Under Plaintiffs’ theory, an employer would be liable for
failing to disclose every obvious danger to which an employee might be exposed prior
to hiring.

Next, Plaintiffs fail to allege a relationship of trust that would create a duty to
disclose the dangers of content moderations. In Florida, a fraudulent concealment claim
based on omission “must be accompanied by allegations of a special relationship that
gives rise to a duty to speak.” Greenberg, 264 F. Supp. 2d at 1073. “[S]uch duty arises

when one party has information that the other party has a right to know because of a
fiduciary or other relation of trust or confidence between them.” TransPetrol, Ltd. V.
Radulovic, 764 So. 2d 878, 880 (Fla. 4th DCA 2000). Plaintiff alleges no duty that
Cognizant had to disclose the dangers of content moderation to them or any special
relationship that would give rise to such a duty.

Finally, Plaintiffs fail to allege that they relied on Cognizant’s omission. “Florida
law imposes a reliance requirement in an omissions case, which cannot be satisfied by
assumptions.” Humana, Inc. v. Castillo, 728 So. 2d 261, 265 (Fla. 2d DCA 1999). “Florida
law also requires a party asserting fraud to establish that but for the alleged

misrepresentation or nondisclosure, the party would not have entered the transaction.”
Id. Here, Plaintiffs do not claim to have relied on Cognizant’s alleged concealment in
anyway or that they would not have accepted jobs as content moderators if they had
known about the dangers accompanying content moderation. In fact, Plaintiffs do not

allege any action that was induced by Cognizant’s alleged concealment or failure to
disclose.
Because Plaintiffs have failed to plead facts sufficient to state a plausible claim
for fraudulent concealment and failed to allege acts of fraud with the specificity required

under Rule 9(b), the Court grants the motion to dismiss with regard to Count I.4

4 Even if Plaintiffs allege fraudulent misrepresentation in Count I and have not abandoned that theory
of liability, the Court concludes it does not state a claim for relief. The only statement identified with
sufficient particularly under Rule 9 fails to specify who said it, when they said it, or where they said it:
“Cognizant advertised the job as a prestigious career in high technology that simply required
[Plaintiffs] to become knowledgeable about ‘leading social media products and community standards,
to ‘assist our community and help resolve inquiries empathetically, accurately and on time,’ and to
‘make well balanced decision and personally drive [sic] to be an effective advocate for our
community.’” (Doc. 23 at 23). Worse yet, Plaintiffs do not allege how this statement was false, that
Cognizant knew it was false, or that they materially relied on it when accepting employment with
Cognizant. See Hearn v. Int’l Bus. Machs., 588 F. App’x 954, 956–57 (11th Cir. 2014) (“Under Florida
law, fraudulent misrepresentation requires: ‘(1) a false statement concerning a material fact; (2) the
B. Negligence
In Counts II and III, Plaintiffs allege that Facebook negligently caused them to

be at risk of developing serious mental health injuries through their content moderation
supervision and provision of moderation software. Plaintiffs separate their claims into
negligent exercise of retained control and negligent provision of unsafe equipment.
Both retention of control and provision of unsafe equipment are theories of liability

that establish a duty; as such, it appears Plaintiffs allege a claim for negligent infliction
of emotional distress. See, e.g., City of Miami v. Perez, 509 So. 2d 343, 346 (Fla. 3d DCA
1987) (“To impose liability on the owner for retention of control over an independent
contractor, there must be such right of supervision or direction that the contractor is

not entirely free to do the work his own way.”); Noel v. M. Ecker & Co., 445 So. 2d 1142,
1144 (Fla. 4th DCA 1984) (“Where the employer undertakes to furnish his own
employee’, or those of an independent contractor, some of the implements or
instrumentalities for executing the required work, he thereby assumes a duty to exercise

ordinary and reasonable care . . . .” (quoting Green v. Sansom, 41 Fla. 94, 103 (1899))).
But Counts II and III omit the one element Florida law ordinarily requires before
a plaintiff may recover for mental or emotional distress caused by negligence: a physical
impact. Zell v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995). “The impact rule, which is well

representor’s knowledge that the representation is false; (3) an intention that the representation induce
another to act on it; and (4) consequent injury by the party acting in reliance on the representation.’”
(quoting Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010))).
established in this state, requires that ‘before a plaintiff can recover damages for
emotional distress caused by the negligence of another, the emotional distress suffered

must flow from physical injuries the plaintiff sustained in an impact.’” S. Baptist Hosp. of
Fla., Inc. v. Welker, 908 So. 2d 317, 320 (Fla. 2005) (quoting R.J. v. Humana of Fla., Inc.,
652 So. 2d 360, 362 (Fla.1995)). Plaintiffs fail to allege any physical impact from
Facebook’s actions or inactions, and they therefore cannot succeed on these theories

of negligence.
Plaintiffs’ alleged injuries are “increased risk of developing serious mental health
injuries, including but not limited to, PTSD, and associated physical injuries.” (Doc. 23
at 27, 29). But the Florida Supreme Court has made clear that the impact rule does not

allow recovery for physical injuries flowing from psychological injuries absent “a close
personal relationship to the directly injured person.” See Zell, 665 So. 2d at 1050, 1054.
True, a claim may be sustained by even the smallest of impact, such as a gun barrel
touching a plaintiff’s head, but Plaintiffs have not alleged any physical contact from

Facebook’s agents or employees. See Willis v. Gami Golden Glades, LLC, 967 So. 2d 846,
850 (Fla. 2007). Further, no other exceptions to the impact rule apply to Plaintiffs’
claims nor do they allege that any do in their opposition to the motion to dismiss. See
Woodard v. Jupiter Christian Sch., Inc., 913 So. 2d 1188, 1190–91 (Fla. 4th DCA 2005)

(citing cases for the following recognized exceptions to the impact rule: intentional
infliction of emotional distress absent impact, “sensory perception” of physical injuries
sustained by a close family, wrongful birth, recovery of non-economic damages for
parents of stillborn child, breach of statutory duty of confidentiality to patient, and
psychological injury due to attorney’s negligence). Accordingly, Plaintiffs fail to state a

claim for negligent infliction of emotional distress upon which relief can be based in
the Amended Complaint, and Counts II and III are dismissed with prejudice. See Howard
v. Memnon, 572 F. App’x 692, 696–97 (11th Cir. 2014) (concluding it would be futile to
amend complaint where no facts supported constitutional violation and no indication a

more carefully drafted pleading might state a claim).
C. Florida Deceptive and Unfair Trade Practices Act
Count IV of Plaintiffs’ Amended Complaint (inadvertently labeled as the third
count) alleges that both Facebook and Cognizant violated the Florida Deceptive and

Unfair Trade Practices Act (FDUTPA) by exposing Plaintiffs5 to dangerous content,
concealing the dangers, refusing to implement proper precautions, preventing Plaintiffs
from becoming aware of the scope of the dangers of content moderation by requiring
broad NDAs, and by misrepresenting dangers through false advertisements about the

jobs. Because Plaintiffs do not allege harm caused to consumers and because claims for
personal injury are excepted under FDUTPA, Plaintiffs have failed to state a claim for

5 Defendants argue that the Arizona plaintiffs have not alleged facts sufficient to state a FDUTPA
claim because FDUTPA does not apply to nonresidents’ actions that occur outside Florida. (Doc. 35
at 18; Doc. 26 at 16). Because the Court concludes that it does not have jurisdiction over Defendants
with regards to these claims and that Plaintiffs have failed to state a valid FDUTPA claim, it does not
address this argument. In any event, Defendants are correct that the Arizona plaintiffs’ FDUTPA
claims fail because they do not allege conduct that occurred in Florida. See Five for Ent. S.A. v. Rodriguez,
877 F. Supp. 2d 1321, 1330–31 (S.D. Fla. 2012) (Seitz, J.) (“FDUTPA applies only to actions that
occurred within the state of Florida.”).
relief.
FDUTPA prohibits “unfair methods of competition, unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or
commerce.” § 501.204, Fla. Stat. To state a FDUTPA claim, a plaintiff must allege “(1)
a deceptive act or unfair practice, (2) causation, and (3) actual damages.” State v. Beach
Blvd. Auto., Inc., 139 So. 3d 380, 393 (Fla. 1st DCA 2014). Section 501.212(3), Florida

Statutes, expressly provides that the cause of action is not available for “[a] claim for
personal injury or death.”
Plaintiffs’ Amended Complaint alleges that Defendants’ actions “caused the
injury of the Plaintiffs and the class, including PTSD and other psychological disorders,

physical injuries including stroke and epilepsy, and other injuries, including lost pay, lost
future earning capacity, emotional distress and loss of enjoyment of life.” (Doc. 23 at
32). Plaintiffs seek recovery for their personal injuries, so their claim cannot be
sustained under FDUTPA. See Fojtasek v. NCL (Bahamas) Ltd., 613 F. Supp. 2d 1351,

1356 (S.D. Fla. 2009) (Ungaro, J.) (dismissing FDUTPA claim as one based on personal
injuries where plaintiff alleged that “decedent suffered bodily injury and resulting pain
and suffering, disability, disfigurement, mental anguish, loss of capacity for the
enjoyment of life, expense of hospitalization, medical and nursing care and treatment,

loss of earnings, loss of ability to earn money, and death”); Douse, 314 F. Supp. 3d at
1264 (dismissing FDUTPA claim for damages related to medical device that caused
injury to plaintiff).
Further, even if Plaintiffs claims were not excepted by the language of FDUTPA,
Plaintiffs still fail to state a valid claim of relief because they do not allege an act that

was deceptive to consumers. For an act to be a deceptive act under FDUTPA, it must be
likely to mislead a consumer to a consumer’s detriment. See Angelo v. Parker, 275 So. 3d
752, 755 (Fla. 1st DCA 2019) (“A deceptive practice is one ‘likely to mislead consumers
acting reasonably in the circumstances, to the consumers’ detriment.’” (quoting Beach

Blvd. Auto., 139 So. 3d at 387)); Molina v. Aurora Loan Servs., LLC, 635 F. App’x 618, 627
(11th Cir. 2015) (concluding that a statement on loan servicer’s website assuring “their
borrowers and public in general that they will help their clients facing long term
hardship to cure his/her default with loan modification” was not deceptive to

consumers). Plaintiffs’ claims do not allege that Cognizant’s or Facebook’s actions
misled consumers in any way; they allege only that employees were deceived.
Accordingly, Plaintiffs have failed to state a claim under FDUTPA and Count IV is
dismissed with prejudice. See Fetterhoff v. Liberty Life Assur. Co., 282 F. App’x 740 (11th

Cir. 2008) (holding that amendment would be futile where plaintiffs claim were
preempted and thereby legally barred); see also Howard, 572 F. App’x at 697 (“If a more
carefully drafted complaint could not state a claim, then dismissal is proper.”).
D. Medical Monitoring

Throughout the Amended Complaint, Plaintiffs ask this Court to establish a
medical monitoring fund to provide treatment and services for class members. (Doc.
23 at 23, 27, 29–30). Florida allows courts to establish medical monitoring schemes in
some mass tort actions before the party seeking relief has developed identifiable
injuries.6 Petito v. A.H. Robins Co., 750 So. 2d 103, 104 (Fla. 3d DCA 1999). Medical

monitoring claims ordinarily arise in cases where plaintiffs have diagnosable health
conditions resulting from exposure to hazardous substances or medical products. See,
e.g., Wyeth, Inc. v. Gottlieb, 930 So. 2d 635 (Fla. 3d DCA 2006) (class action against
manufacturer of hormone replacement therapy drug); Petito, 750 So. 2d at 104 (class

against against manufacturers of pharmaceutical weight loss products); Perez v. Metabolife
Int’l, Inc., 218 F.R.D. 262 (S.D. Fla. 2003) (suit against manufacturer of over-the-counter
dietary supplement); Jerue v. Drummond Co., No. 8:17-CV-587-T-17AEP, 2017 WL
10876737, at *14 (M.D. Fla. 2017) (Kovachevich, J.) (suit against mining company for

exposure to radiation from phosphate). It is not clear that Florida law permits a medical
monitoring regime to be created for mental health conditions like PTSD or trauma.
Even assuming it does, Plaintiffs have failed to state a valid claim for medical
monitoring.

To state a claim for a medical monitoring, Plaintiffs must establish “(1) exposure
greater than normal background levels; (2) to a proven hazardous substance; (3) caused
by the defendant’s negligence; (4) as a proximate result of the exposure, plaintiff has a
significantly increased risk of contracting a serious latent disease; (5) a monitoring

6 Some Florida courts describe this as a “cause of action,” even though it appears to be a specific
pleading requirement for a tort claim remedy. See, e.g., Petito, 750 So. 2d at 105; Jerue v. Drummond Co.,
2017 WL 10876737, at *14 (M.D. Fla. 2017) (Kovachevich, J.). Regardless, Plaintiffs have failed to
adequately plead a claim for medical monitoring.
procedure exists that makes the early detection of the disease possible; (6) the prescribed
monitoring regime is different from that normally recommended in the absence of the

exposure; and (7) the prescribed monitoring regime is reasonably necessary according
to contemporary scientific principles.” Wyeth, Inc. v. Gottlieb, 930 So. 2d 635, 640 (Fla.
3d DCA 2006). Leaving aside the fact that Plaintiffs have not adequately alleged
Defendants’ negligence, the Amended Complaint does not allege that a monitoring

procedure exists for psychological injuries, that screening for these psychological
injuries is different amongst person exposed to graphic images, or that a monitoring
procedure is necessary according to modern scientific principles. Accordingly, Plaintiffs
have failed to state a valid claim for medical monitoring.

E. Prevailing Party Attorneys’ Fees under FDUTPA
Plaintiffs, in their Response to Facebook’s Motion to Dismiss, contend that they
are entitled to attorneys’ fees as prevailing parties under FDUTPA. According to them,
they have obtained judicially sanctioned relief in a California class action case that would

include relief for Plaintiffs’ claims against Facebook and preclude further litigation.
(Doc. 56 at 13–14); Selena Scola, et al. v. Facebook, Inc., No. 18-civ-05135 (Cal. Super. Ct.
filed Sept. 21, 2018). Plaintiffs’ assertions are misplaced for several reasons.7
First, the California Superior Court has not approved the settlement agreement

yet, so no party has secured a final judgment providing relief. Second, under the text of

7 In addition, Plaintiffs should have set forth their request in a separate motion. See Fed. R. Civ. P.
7(b).
section 501.2105, Florida Statutes, which governs attorneys’ fees in FDUTPA claims, a
party must obtain a judgment in the instant litigation to be considered a prevailing party.

See § 501.2105(1) (“In any civil litigation resulting from an act or practice involving a
violation of this part, . . . the prevailing party, after judgment in the trial court and exhaustion
of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from
the nonprevailing party.” (emphasis added)); see Money v. Home Perf. Alliance, Inc., No.

2D19-1642, 2021 WL 45658, at *2–3 (Fla. 2d DCA 2021) (concluding that “[u]nder the
statute’s plain and obvious meaning, it is only after entry of judgment in the trial court
that the prevailing party may be entitled to attorney’s fees”). Accordingly, Plaintiffs
cannot recover attorneys’ fees in this case unless and until they obtain a final entry of

judgment in this action. See Money, No. 2D19-1642, 2021 WL 45658, at *2–3. They have
not done so; in fact, the Defendants have now secured a dismissal with prejudice of all
the claims.
IV. CONCLUSION

Plaintiffs fail to establish that this Court has personal jurisdiction over either
Defendant with regards to the Arizona plaintiffs’ claims. Further, the Plaintiffs fail to
state a claim upon which relief can be granted for all counts in the Amended Complaint.
Finally, the Court denies Plaintiffs’ requests for attorneys’ fees under FDUTPA.

Accordingly, the following is ORDERED:
1. Defendants Facebook and Cognizant’s Motions to Dismiss (Docs. 35 & 36) are
GRANTED in their entirety.
2. Plaintiffs Alexander C. Roberts and Michael Wellman’s claims are DISMISSED
without prejudice for lack of personal jurisdiction.

3. Count I (fraudulent misrepresentation or concealment) is DISMISSED without
prejudice as to Plaintiffs Debrynna Garrett, Timothy Dixon, Jr., Konica Ritchie,
Lamond Richardson, Angela Cansino, Johnny Olden, Katrina Evans, Todd
Alexander, Elton Gould, Lameka Dotson, Nicholas Collins, Remeal Eubanks,

Tania Paul, Gabrielle Murrell, and Courtney Nelson.
4. Counts II and III (negligence) are DISMISSED with prejudice.
5. Count IV (FDUTPA) is DISMISSED with prejudice as to all claims against
Facebook and as to the claims between Cognizant and Plaintiffs Debrynna

Garrett, Timothy Dixon, Jr., Konica Ritchie, Lamond Richardson, Angela
Cansino, Johnny Olden, Katrina Evans, Todd Alexander, Elton Gould, Lameka
Dotson, Nicholas Collins, Remeal Eubanks, Tania Paul, Gabrielle Murrell,
Courtney Nelson.

6. Plaintiffs request for attorneys’ fees is DENIED without prejudice.
7. The Clerk is directed to administratively close the case, terminate all pending
motions, and terminate all parties except those whose proceedings were stayed
by the Court’s Order dated June 11, 2020 (Doc. 47), namely Plaintiffs Jessica

Young, Daniel Walker, and Dawnmarie Armato, and Defendant Cognizant.
ORDERED in Tampa, Florida, on May 14, 2021.

po a “5 Maizelle
United States District Judge

24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107570. Public record. Not legal advice.