Thurn v. Kimberly-Clark Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KELLY THURN and

JEFFREY THURN, her husband,

Plaintiffs,

v. Case No. 8:22-cv-2526-TPB-AAS

KIMBERLY-CLARK CORPORATION and

SAM’S WEST, INC. d/b/a SAM’S CLUB

a Foreign Profit Corporation,

Defendants.

________________________________________ /

ORDER GRANTING “DEFENDANT KIMBERLY-CLARK CORPORATION’S

MOTION TO DISMISS PLAINTIFFS’ COMPLAINT”

This matter comes before the Court on “Defendant’s Motion to Dismiss the

Plaintiffs’ Complaint,” filed on November 11, 2022, seeking to dismiss Counts I, II,

V, VI, and VII. (Doc. 7). Plaintiffs Kelly Thurn and Jeffrey Thurn filed a response

in opposition on November 18, 2022. (Doc. 14). After reviewing the motion,

responses, relevant authorities, court file, and record, the Court finds as follows:

Background1

Defendant Kimberly-Clark Corporation (“KCC”) is a world-wide

manufacturer and distributor of personal care products under well-known brand

names, including Cottonelle. Around February 2020, certain lots of Cottonelle

1 The Court accepts as true the facts alleged in Plaintiffs’ complaint for purposes of ruling

on the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen

ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.”). The Court is not required to accept as true any

legal conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286

(1986).

Flushable Wipes and Cottonelle GentlePlus Flushable Wipes were contaminated

with Pluralibacter gergoviae, a pathogen linked to a variety of bacterial infections in

humans. At that time, KCC distributed the Cottonelle wipes through various retail

channels, including Defendant Sam’s West, Inc. d/b/a Sam’s Club (“SWI”), where the

Cottonelle wipes reached consumers.

During the months following the contamination, consumers complained of

several adverse side effects to KCC via online review boards and social media

comments. On October 9, 2020, KCC commenced a nationwide recall for all lots of

contaminated Cottonelle wipes by providing a list of lot numbers on the Cottonelle

website. SWI and other retailers also issued notices to retail purchasers regarding

the recall of the contaminated Cottonelle wipes.

Given the nationwide shortage of toilet paper during the pandemic, Ms.

Thurn purchased Cottonelle wipes for personal and family use from a Sam’s Club in

Lakeland, Florida, at some point between January 2020 and July 2020. Before

learning of KCC’s recall, Ms. Thurn used the Cottonelle wipes she purchased from

Sam’s Club. After using the wipes, Ms. Thurn became ill, presented to her doctor

with lower abdominal pain, and was diagnosed with diverticulitis on or about July

22, 2020. Later, on October 24, 2020, Ms. Thurn became aware, through a Sam’s

Club’s notice, that “a bulk amount of contaminated wipes” she purchased appeared

on the recall list released by KCC. Ms. Thurn then ceased using the Cottonelle

wipes.

Plaintiffs initiated this action in state court against KCC and SWI

(collectively, “Defendants”), which Defendants later removed to federal court. (Doc.

1). In the complaint, Plaintiffs set forth several claims against KCC, including

breach of an implied warranty of merchantability (Count I), breach of an express

warranty (Count II), strict products liability (Count III), negligence (Count IV),

fraud by silence or omission (Count V), negligent misrepresentation (Count VI), and

unjust enrichment (Count VII) on behalf of Ms. Thurn as well as a claim for loss of

consortium (Count X) on behalf of Mr. Thurn. (Doc. 1-5). KCC now moves to

dismiss several claims, arguing that Plaintiffs (1) fail to state a claim for relief that

can be granted as to the claims for breach of an implied warranty, breach of an

express warranty, and unjust enrichment, and (2) fail to plead with the requisite

specificity as to the claims for fraudulent concealment and negligent

misrepresentation. (Doc. 7).

Legal Standard

A complaint 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). While Rule 8(a) does

not demand “detailed factual allegations,” the plaintiff must plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). Although a complaint challenged by a Rule 12(b)(6) motion to

dismiss need not contain detailed factual allegations, a plaintiff must provide the

grounds for his or her entitlement to relief, and “a formulaic recitation of the

elements of a cause of action will not do.” Id. at 555 (citations omitted). The court

must be able to “draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Accordingly, only a complaint that states a plausible claim for relief will survive a

motion to dismiss. See id. at 679.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint and any exhibits attached thereto. Fed. R. Civ. P. 10(c);

Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D. Fla. 1995). “[A] motion

to dismiss should concern only the complaint’s legal sufficiency, and is not a

procedure for resolving factual questions or addressing the merits of the case.” Am.

Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009

WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009).

In cases involving fraud, Rule 9(b) requires that the complaint state with

particularity the circumstances constituting the fraud or mistake, setting forth the

challenged statements and the documents or oral representations where they were

made, their time and place, the person responsible for making or not making the

statements, the content of the statements, how they misled the plaintiff, and what

the defendant obtained by the alleged fraud. In re Galectin Therapeutics, Inc. Secs.

Litig., 843 F.3d 1257, 1269 (11th Cir. 2016) (citations omitted); Mizzaro v. Home

Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (citations omitted). Rule 9(b) also

provides that the complaint may allege intent, knowledge, and other conditions of

the defendant’s mind generally. Primarily, to comply with Rule 9(b), the plaintiff

must set forth allegations with specificity, including the exact “circumstances

constituting fraud,” stating the who, what, when, where, and how regarding the

alleged fraudulent activity. Garfield v. NDC Health Corp., 466 F.3d 1255, 1262

(11th Cir. 2006).

Analysis

Breach of Implied Warranty Claim (Count I)

KCC moves to dismiss Count I on the basis that no privity exists between the

parties. Indeed, “Florida law requires privity of contract to sustain a breach of

implied warranty claim.” David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309,

1321 (S.D. Fla. 2009); see also Bailey v. Monaco Coach Corp., 168 F. App’x 893, 894

(11th Cir 2006) (per curiam) (affirming grant of summary judgment where district

court found that, because plaintiff was not in privity with the manufacturer of a

motor home, plaintiff’s claim for breach of implied warranty failed as a matter of

law); Valiente v. Unilever U.S., Inc., No. 22-21507-CIV-LENDARD/LOUIS, 2022 WL

18587887, at *14 (S.D. Fla. Dec. 8, 2022) (quoting David).

Put simply, Plaintiffs fail to allege privity with KCC, and the allegations

show that privity does not exist. Instead, Plaintiffs allege that Ms. Thurn

purchased the Cottonelle wipes from Sam’s Club in Lakeland, Florida, not directly

from KCC. Plaintiffs therefore cannot maintain a claim for breach of implied

warranty.2 Since amendment would prove futile, Count I is dismissed with

prejudice.3

Breach of Express Warranty Claim (Count II)

KCC next moves to dismiss Plaintiffs’ claim for breach of express warranty,

arguing that this claim similarly fails for lack of privity between the parties and

additionally because Plaintiffs fail to set forth any allegations regarding Ms.

Thurn’s justifiable reliance. Though a breach of an implied warranty claim requires

privity, that does not necessarily hold true for breach of express warranty claims.

“Florida law reveals no clear rule about whether privity is required in every Florida

express warranty claim.” Godelia v. Doe 1, 881 F.3d 1309, 1321 (11th Cir. 2018). In

fact, some courts have concluded that privity may not be required to recover for

breach of an express warranty, while other courts apply the same privity

requirements as a claim for breach of an implied warranty.4

As the Court noted above, privity does not exist under these facts. Even if

privity were not required, however, Plaintiffs have still not sufficiently stated an

2 By failing to even respond to KCC’s request to dismiss Count I, Plaintiffs effectively

concede that the claim for breach of implied warranty cannot stand. See Jones v. Bank of

America, N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (finding that a party’s failure to

respond to any portion or claim in a motion indicates that such portion, claim, or defense is

unopposed, and, when a party fails to respond to an argument or otherwise address a claim,

the court deems that argument or claim abandoned).

3 See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a

complaint is futile when the complaint as amended would still be properly dismissed or be

immediately subject to summary judgment for the defendant.”) (citation omitted).

4 See Baker v. Brunswick Corp., No. 2:17-cv-572-FtM-9MRM, 2018 WL 1947433, at *3

(M.D. Fla. Apr. 25, 2018) (noting that the “general rule” in Florida requires privity for an

express warranty claim, but that “it is not clear that privity is always required” for such a

claim); cf. Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1342 (S.D. Fla. 2009)

(describing the privity requirement under Florida warranty law as a “moving target”).

express warranty claim. Where privity does not exist, some courts have found that

“a plaintiff who purchased a product from a third party may properly bring claims

for a breach of warranty against the manufacturer if ‘substantial direct contacts’

existed between the plaintiff and the manufacturer.” Inouye v. Adidas Am., Inc.,

No. 8:22-cv-416-VMC-TGW, 2023 WL 2351654, at *7 (M.D. Fla. Mar. 3, 2023)

(quoting Douse v. Boston Sci. Corp., 314 F. Supp. 3d 1251, 1262 (M.D. Fla. 2018)).

Even applying this exception to the privity requirement, Plaintiffs failed to plead

sufficient allegations to state a claim – namely, that KCC engaged in substantial

direct contact with Ms. Thurn.

Plaintiffs broadly allege that KCC conveyed the following descriptions,

affirmations of fact, and promises to Plaintiffs with respect to Cottonelle wipes that

gave rise to express warranties: the wipes were of sufficient quality to pass without

objection in the trade or industry, the wipes will consistently meet consumer’s

needs, the wipes will “perform as intended,” the wipes are “safe for their intended

use,” the wipes will reach consumers in a “safe” condition, the wipes are “sanitary,”

the wipes utilize “CleaningRipples Texture and the cleansing power of water to

deliver long-lasting freshness,” the wipes are “gentle and effective for a truly

refreshing clean,” the wipes “deliver a gentle clean for sensitive skin,” the wipes

deliver a “refreshing clean,” and the wipes “offer a large, dual layer wipe to clean

better than when using dry toilet paper alone.” KCC purportedly breached those

express warranties by selling Cottonelle wipes to Ms. Thurn that were

contaminated with the harmful bacteria and subject to recall. However, Plaintiffs

fail to allege where and when those statements were made, whether Ms. Thurn

received such statements directly from KCC, and how such statements establish

substantial direct contact with Ms. Thurn. As such, Plaintiffs failed to state a claim

upon which relief can be granted as to the breach of express warranty claim.

Notwithstanding, Plaintiffs contend that the Magnuson-Moss Warranty Act,

15 U.S.C. § 2301 et seq. (“MMWA”) creates a cause of action for a consumer to sue a

supplier for the failure to comply with an express warranty. Indeed, the MMWA

provides a remedy for state law warranty claims enforceable in federal court.5 Toca

v. Tutco, LLC, 430 F. Supp. 3d 1313, 1322 (S.D. Fla. 2020). Though the MMWA

provides consumers a private right of action against warrantors for a breach of

warranty, the claims are defined by state law and only exist if a valid breach of

warranty claim is also stated.6 Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290,

1304 (S.D. Fla. 2017). To proceed with a claim for breach of an express warranty,

Plaintiffs must state a cause of action for breach of warranty under Florida law,

which, as indicated, they have not done.

Plaintiffs cite to Article 2 of the UCC as the basis for their claim for breach of

express warranty. Chapter 672, Florida Statutes, reflects Florida’s version of

5 Notably, the MMWA speaks only to implied warranties, written warranties, and service

contracts, while state law defines express warranties, which encompass both written and

oral undertakings. See Walsh v. Ford Motor Co., 807 F.2d 1000, 1015 (D.C. Cir. 1986); Hill

v. Hoover, 899 F. Supp. 2d 1259, 1266 n.3 (N.D. Fla. 2012); see 15 U.S.C. §§ 2301, 2303,

2308, 2310; § 672.313, F.S.

6 The complaint does not explicitly identify the MMWA as the basis for Plaintiffs’ breach of

express warranty claim. Since the analysis requires consideration of Florida law, this

omission is insignificant. If Plaintiffs seek to proceed on a claim under the MMWA in the

amended complaint, they should so indicate.

Article 2 of the Uniform Commercial Code, which applies to transactions involving

goods. See Hill, 899 F. Supp. 2d at 1266; see § 672.102, F.S. To plead a cause of

action for breach of an express warranty under the Florida UCC, the complaint

must allege: “(1) the sale of goods; (2) the express warranty; (3) breach of the

warranty; (4) notice to seller of the breach; and (5) the injuries sustained by the

buyer as a result of the breach of the express warranty.” Moss v. Walgreen Co., 765

F. Supp. 2d 1363, 1368 (S.D. Fla. 2011) (internal footnotes and citation omitted). In

Florida, “[a]ny affirmation of fact or promise made by the seller to the buyer which

relates to the goods and becomes part of the basis of the bargain creates an express

warranty that the goods shall conform to the affirmation or promise,” and “[a]ny

description of the goods which is made part of the basis of the bargain creates an

express warranty that the goods shall conform to the description.” § 672.313(1)(a) &

(b), F.S. Nevertheless, “an affirmation merely of the value of the goods or a

statement purporting to be merely the seller’s opinion or commendation of the goods

does not create a warranty.” § 672.313(2), F.S. To the extent that Plaintiffs want to

continue to pursue a claim for breach of express warranty, they must include all the

elements of the claim in any amended complaint, which they have not done here.

Accordingly, the motion to dismiss is granted, without prejudice, as to Count II,

with leave to amend.

Claims Sounding in Fraud

KCC also moves to dismiss Plaintiffs’ claims for fraudulent concealment and

negligent misrepresentation, arguing that the allegations in the complaint fail to

satisfy the particularity requirements of Rule 9(b) based on the purported lack of

specificity as to the reliance element of both claims. As indicated, under Rule 9(b),

parties must specifically allege what statements or omissions were made in which

documents or oral representations, the time and place the statements were made,

the person who made or omitted making the statements, the content of the

statements, the way the statements misled the plaintiff, and what the defendant

obtained because of the fraud. In re Galectin Therapeutics, Inc. Secs. Litig., 843

F.3d at 1269 (citations omitted). Since claims for fraudulent concealment and

negligent misrepresentation sound in fraud, each claim must be pleaded with

particularity. Lamm v. State St. Bank & Tr., 749 F.3d 938, 951 (11th Cir. 2014)

(finding that Rule 9(b)’s heightened pleading requirements apply to claims for

negligent misrepresentation under Florida law); Koski v. Carrier Corp., 347 F.

Supp. 3d 1185, 1196 (S.D. Fla. 2017) (finding that claims for fraudulent

concealment under Florida law are subject to the heightened pleading requirements

of Rule 9(b)).

Fraudulent Concealment Claim (Count V)

To state a claim for fraudulent concealment under Florida law, a plaintiff

must allege: “(1) the defendant concealed or failed to disclose a material fact; (2) the

defendant knew or should have known that the material fact should be disclosed; (3)

the defendant knew its concealment of the fact would induce the plaintiff to act; (4)

the defendant had a duty to disclose the material fact; and (5) the plaintiff relied on

the misrepresentation to his or her detriment.” Koski, 347 F. Supp. 3d at 1196.

Under Florida law, “reliance is an indispensable aspect of proving causation in a

fraud claim.” Prentice v. R.J. Reynolds Tobacco Co., 338 So. 3d 831, 838 (Fla. 2022).

Particularly, in the context of a fraudulent concealment claim, “[r]eliance means

that a plaintiff has entered a transaction in whole or in part because of the

defendant’s fraudulent conduct” and requires the plaintiff to have “received,

believed, and acted upon” a misrepresentation made by the defendant. Id. (citations

and internal quotation marks omitted). Importantly, “there can be no reliance if the

plaintiff is unaware of the defendant’s misrepresentations until after the

transaction is complete, or if the plaintiff would have acted the same way regardless

of whether the defendant had made the misrepresentation.” Id. (citation omitted).

As detailed above, Plaintiffs allege that KCC negligently misrepresented its

wipes as safe and sanitary and fraudulently concealed a material defect with the

wipes. More specifically, Plaintiffs allege that: (1) “[f]rom its statements of broad

corporate principals to its packaging designs for particular products, Defendant

KCC drives home a consistent message about what consumers can expect of its

Cottonelle-brand products: they’re quality, clean, gentle, refreshing, hygienic, and –

most importantly – safe,” and (2) “[a]t every turn, and through nearly[] every

medium, Defendant KCC reminded consumers of their supposed commitment to

quality and safety.” In support, Plaintiffs point to social media posts by KCC,

information available on KCC’s Cottonelle website, KCC’s marketing campaign,

Cottonelle wipes’ packaging, and an article with the Cottonelle Brand Manager as

indicative of KCC’s consistent messaging.

While Plaintiffs provide images of KCC’s allegedly misleading statements

from Cottonelle’s social media and its packaging and quote KCC’s advertising

slogans, these allegations fail to allege what, if any, statements Mrs. Thurn received

and relied upon before purchasing the Cottonelle wipes. The complaint merely

identifies Ms. Thurn’s general belief in the safety of the Cottonelle wipes. The

allegations thus are insufficient to meet the heightened pleading standard required

by Rule 9(b). Accordingly, KCC’s motion to dismiss is granted, without prejudice, as

to Count V, with leave to amend.

Negligent Misrepresentation Claim (Counts VI)

To state a claim for negligent misrepresentation in Florida, “a plaintiff must

allege: ‘(1) the defendant made a misrepresentation of material fact that he believed

to be true but which was in fact false; (2) the defendant was negligent in making the

statement because he should have known the representation was false; (3) the

defendant intended to induce the plaintiff to rely … on the misrepresentation; and

(4) injury resulted to the plaintiff acting in justifiable reliance upon the

misrepresentation.’” McGee v. JP Morgan Chase Bank, NA, 520 F. App’x 829, 831

(11th Cir. 2013) (quoting Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla. 5th

DCA 2004)). In the context of commercial transactions, liability for negligent

misrepresentation is limited to the extent that “the supplier of the information is

only liable if he manifests an intent to deceive.” Linville v. Ginn Real Est. Co., LLC,

697 F. Supp. 2d 1302, 1307 (M.D. Fla. 2010) (citing Gilchrist Timber Co. v. ITT

Rayonier, Inc., 696 So. 2d 334, 339 (Fla. 1997)).

Importantly, a claim for negligent misrepresentation under Florida law

requires a showing that the recipient of the information justifiably relied upon the

erroneous information. Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So. 3d

306, 310 (Fla. 1st DCA 2011) (citations omitted). “Justifiable reliance requires more

than lack of actual knowledge of the representation’s falsity, but does not mandate

that the plaintiff have independently investigated the representation.” AECOM

Tech. Servs., Inc. v. Pro. Servs. Indus., Inc., 580 F. Supp. 3d 1176, 1195 (M.D. Fla.

2021); see Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (“As to negligent

misrepresentation claims, although justifiable reliance on the misrepresentation is

required as an element of the claim, justifiable reliance on a representation is not

the same thing as failure to exercise due diligence.”).

The “material fact” needed to support a claim for negligent misrepresentation

generally must involve a statement concerning a past or present fact and cannot be

predicated on opinions. Collins v. Countrywide Home Loans, Inc., 680 F. Supp. 2d

1287, 1293 (M.D. Fla. 2010) (citations omitted). “There is a recognized exception to

this rule: when the false statement was made by a person having superior

knowledge of the subject of the statement, and the plaintiff can show that the

person knew or should have known from the facts in his possession that the

statement was false, then the opinion statement can be treated as a statement of

fact.” Id. (citations omitted). Further, actionable misrepresentations are not

limited to statements affirmatively false on their face but also include statements

classified as misleading because they omit other material information. Prentice,

338 So. 3d at 838. “What matters is that the defendant intend to induce the

plaintiff’s reliance by creating a false impression in the plaintiff’s mind,” as fraud is

effected through representations. Id.

The object of a plaintiff’s reliance must therefore be a representation by the

defendant. Id. Given that, the Court does not find Plaintiffs’ argument equating

materiality with justifiable reliance persuasive. Rather, Plaintiffs’ failure to

specifically identify which of KCC’s representations or omissions, if any, Mrs. Thurn

received and relied upon before purchasing the Cottonelle wipes leaves her claim for

negligent misrepresentation deficient, as it fails to meet the heightened pleading

standard required by Rule 9(b). See McGee, 520 F. App’x at 831-32 (finding

plaintiffs failed to state a claim for negligent misrepresentation where they offered

only a conclusory claim that they relied upon pricing representations, sales

representations, and appraisal representations – none of which the court found

sufficient to state a cause of action for negligent misrepresentation under Florida

law). Accordingly, KCC’s motion to dismiss is granted, without prejudice, as to

Count VI, with leave to amend.

Unjust Enrichment Claim (Count VII)

Lastly, KCC moves to dismiss Plaintiffs’ claim for unjust enrichment, arguing

that the claim fails because Ms. Thurn did not confer any direct benefit upon KCC.

To bring a claim for unjust enrichment in Florida, a plaintiff must allege: (1) the

plaintiff 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 defendant to retain the benefit 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) (citations

omitted)). The plaintiff must directly confer a benefit to the defendant to prevail on

an unjust enrichment claim. Marrache v. Bacardi U.S.A., Inc., 17 F.4th 1084, 1101

(11th Cir. 2021) (citations omitted); Johnson v. Catamaran Health Sols., LLC, 687

F. App’x 825, 830 (11th Cir. 2017). Accordingly, where a plaintiff fails to allege that

he or she directly conferred a benefit upon the defendant, dismissal is warranted.

See Marrache, 17 F.4th at 1102 (affirming district court’s dismissal of unjust

enrichment claim where the allegations indicated that the plaintiff and other class

members purchased bottles of Bombay from Winn-Dixie, not Bacardi, and therefore

that the plaintiff only alleged an indirect benefit to Bacardi, which could not satisfy

the first element of an unjust enrichment claim against Bacardi).

In the complaint, Plaintiffs allege that Ms. Thurn conferred “a benefit” on

KCC at Ms. Thurn’s expense when she paid KCC for the Cottonelle wipes that were

potentially contaminated with harmful bacteria, subject to recall, and therefore

worthless, and KCC was unjustly enriched by the sale of the recalled, and now

worthless, wipes. Notably, however, Plaintiffs allege that Ms. Thurn purchased the

Cottonelle wipes from Sam’s Club in Lakeland, Florida, not directly from KCC.

Plaintiffs contend that even though Ms. Thurn purchased the Cottonelle wipes from

a retailer, KCC directly benefited by receiving compensation for the sale of the

Cottonelle wipes, and the fact that Plaintiffs purchased the Cottonelle wipes from a

retailer does not foreclose a finding that KCC received some benefit.

Contrary to Plaintiff’s argument, the fact that Ms. Thurn purchased the

Cottonelle wipes from a retailer, rather than directly from KCC, proves fatal to

Plaintiffs’ claim of unjust enrichment. Even if KCC retained a portion of the profits

from the sale of the Cottonelle wipes, Ms. Thurn conferred, at best, an indirect

benefit upon KCC. See Marrache, 17 F.4th at 1101-02; Johnson, LLC, 687 F. App’x

at 830. Such indirect benefit is simply not enough to establish a claim for unjust

enrichment, and, therefore, Plaintiffs’ claim fails. See Marrache, 17 F.4th at 1101-

02; Johnson, LLC, 687 F. App’x at 830. As Plaintiffs cannot state a claim for unjust

enrichment against KCC where Ms. Thurn conferred only an indirect benefit upon

KCC, Count VII is dismissed with prejudice.7

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

1. “Defendant Kimberly-Clark Corporation’s Partial Motion to Dismiss

Plaintiffs’ Complaint” (Doc. 7) is hereby GRANTED.

2. Count I and Count VII of Plaintiffs’ complaint are DISMISSED WITH

PREJUDICE.

3. Count II, Count V, and Count VI of Plaintiffs’ complaint are DISMISSED

WITHOUT PREJUDICE, with leave to amend.

7 Given that dismissal with prejudice is warranted on that basis, the Court will not address

KCC’s other argument that the existence of express warranties precludes a claim for unjust

enrichment.

4. Plaintiffs shall have up to and including July 25, 2023 to file an amended

complaint. Failure to file an amended complaint will result in this Order

becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v. State

Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020).

DONE and ORDERED in Chambers, in Tampa, Florida, this 11th day of

July, 20238.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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