Sunshine Children's Learning Center, LLC v. Waste Connections of Florida, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-62123-BLOOM/Valle

SUNSHINE CHILDREN’S

LEARNING CENTER, LLC,

on behalf of itself and all others similarly situated

Plaintiff,

v.

WASTE CONNECTIONS OF FLORIDA, INC.,

Defendant.

_________________________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant Waste Connections of Florida, Inc.’s

(“Defendant”) Motion to Dismiss Amended Complaint and to Strike Class Allegations, ECF No.

[40] (“Motion”). Plaintiff Sunshine Children’s Learning Center, LLC (“Plaintiff”) filed a Response

in Opposition, ECF No. [48] (“Response”), to which Defendant replied, ECF No. [52] (“Reply”).

The Court has carefully reviewed the Motion, the record in this case, the applicable law, and is

otherwise fully advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

Plaintiff filed its First Amended Complaint (“Complaint”) on November 17, 2021,

asserting two counts against Defendant: breach of contract (“Count I”); and breach of the covenant

of good faith and fair dealing (“Count II”). See generally ECF No. [35]. The basis for Plaintiff’s

claims against Defendant is that Defendant increased its rates in breach of the Parties’ contract

(“Contract”) and in breach of the covenant of good faith and fair dealing. See id. The Contract

enumerates two categories of rate increases:

5) Rate Adjustments.

(a) Contractor may increase the rates and/or charges set out on the front of this

Agreement and Customer agrees to pay the increased charges and/or rates provided

that such increased charges and/or rates are base [sic] upon increased costs to

Contractor including as a result of increases in any one or more of the following:

disposal facility costs, landfill costs (including due to recycling costs or otherwise),

fuel costs or surcharges, transportation costs, increases in fees or taxes imposed by

local, state or federal governments and costs of regulatory compliance. “Landfill

costs” means and includes all costs of disposal, however and whenever incurred by

Contractor in respect of [sic] the disposal of Waste Materials collected from

Customer. Without limiting the generality of the foregoing, disposal costs shall

include the costs of disposal incurred by Contractor may [sic] also increase the rates

and/or charges annually to reflect increases in the Consumer Price Index.

(b) Adjustments to the rates and/or charges set out on the front of this Agreement

other than as provided in Section 5 (a) hereof may be made by the Contractor by

giving the Customer thirty (30) days prior written notice. Such rate adjustment will

be effective on the date specified in the Contractors’ notice unless the Customer

gives written notice that it objects to the proposed adjustment within 15 days of

receipt of the Contractor’s notice. If the Customer gives written notice of objection

pursuant to this subsection (b), this Agreement shall continue at the previous rate,

but the Contractor may, at any time thereafter, terminate this Agreement by giving

the Customer thirty (30) days prior written notice.

ECF No. [35] ¶ 26; see also ECF No. [35-1] at 3. Plaintiff also asserts class representation

allegations. See ECF No. [35] ¶¶ 44-53.

Defendant now moves to dismiss each Count in the Complaint. Defendant contends that

the Contract permits rate increases, Defendant provided adequate notice of rate increases through

invoices, the voluntary payment doctrine applies, and Plaintiff fails to allege any damages.

Defendant also argues that the Court should dismiss class representation allegations. Plaintiff

responds that the rate increases required a corresponding increase in costs or prior notice,

neither of which occurred, that issues regarding materiality, adequacy of notice, and the

voluntary payment doctrine cannot be addressed in a motion to dismiss, and that the

Complaint does allege damages. Plaintiff also argues that the Court should reject challenges

to class certification at this stage of the proceedings.

I. LEGAL STANDARD

A. Failure to State a Claim

A pleading 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). Although a complaint “does not need detailed factual

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.

Ct. 1955, 167 L.Ed.2d 929, (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173

L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation”). Additionally, a complaint may not

rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129

S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct.

1955. If the allegations satisfy the elements of the claims asserted, a defendant’s motion to dismiss

must be denied. Id. at 556.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s

allegations as true and evaluate all plausible inferences derived from those facts in favor of the

plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe

of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002);

AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009)

(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving

party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.

A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint

and attached exhibits, including documents referred to in the complaint that are central to the claim.

See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent

Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners

of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed

in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While

the court is required to accept as true all allegations contained in the complaint, courts “are not

bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.

at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.’” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

B. Class Certification

District courts have broad discretion in deciding whether to certify a class. Washington v.

Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). To certify a class

action, the putative class must satisfy “the four requirements listed in Rule 23(a), and the

requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v. Vital Pharm., Inc., 621 F. App’x

945, 946 (11th Cir. 2015) (citing Little v. T–Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.

2012)); see also Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he

putative class must meet each of the four requirements specified in [Rule] 23(a), as well as at least

one of the three requirements set forth in [Rule] 23(b).”); Rutstein v. Avis Rent–A–Car Sys., Inc.,

211 F.3d 1228, 1233 (11th Cir. 2000) (“A class action may be maintained only when it satisfies

all of the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of

Rule 23(b).” (quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)).

“A district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a

class.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009) (quoting Castano v. Am.

Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)).

II. DISCUSSION

A. Failure to State a Claim

i. Count I

In Count I, Plaintiff asserts a breach of contract claim against Defendant. See ECF No. [35]

¶¶ 54-59. Defendant argues that Plaintiff fails to state a breach of contract claim because: (1) the

Contract allows Defendant to raise rates in the absence of an objection; (2) delayed notice of rate

increases is not a material breach; (3) the voluntary payment doctrine bars the claim; and (4)

Plaintiff fails to allege that it was damaged by the alleged breach. See ECF No. [40] at 13-23.

Plaintiff argues that: (1) the Complaint states a breach of contract claim by alleging that Defendant

breached Section 5(a) of the Contract; (2) materiality and adequacy of notice cannot be decided in

a motion to dismiss; (3) the plain language of the Contract refutes Defendant’s argument regarding

materiality, contractual conditions, and damages; and (4) the voluntary payment doctrine cannot

be considered at this stage of the proceedings. See ECF No. [48] at 7-16. The Court addresses

Defendant’s arguments in turn.

a. Allegations of a Breach

As a preliminary matter, the Court notes that, under Florida law, “an adequately pled breach

of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3)

damages.” 1100 Millecento Residences Condo. Ass’n, Inc. v. Empire Indem. Ins. Co., No. 21-CV-

23424, 2021 WL 5205956, at *2 (S.D. Fla. Nov. 9, 2021) (Bloom, J.) (quoting Friedman v. New

York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008); Grove Isle Ass’n, Inc. v. Grove Isle

Assocs., LLLP, 137 So. 3d 1081, 1094-95 (Fla. 3d DCA 2014)). Neither Party contests the

existence of a valid contract.

Instead, Defendant first argues that Plaintiff fails to allege a breach because the Contract

allows Defendant to raise rates. See ECF No. [40] at 14-15. According to Defendant, the Complaint

alleges that the rate increases were not Section 5(a) rate increases, and any alleged breach must

have been a breach of Section 5(b). See id. Section 5(b) allows Defendant to raise rates unless

Plaintiff objects, and Plaintiff never alleges that Plaintiff objected to the rate increases. See id. As

such, Defendant argues that Plaintiff fails to allege that Defendant breached Section 5(b). See id.

(“Waste Connections acted as envisioned under Section 5(b).”). Further, Defendant argues that the

Complaint alleges that Plaintiff received monthly invoices with increased rates, which constitute

compliance with the notice requirement of Section 5(b). See id. at 15 (“Sunshine’s pleading

concedes that it received actual notice of service rate increases, via monthly invoicing.”).

Plaintiff responds that the Complaint does not allege that the rate increases were not

Section 5(a) rate increases. See ECF No. [48] at 8. Rather, Plaintiff argues that if the rate increases

were Section 5(a) rate increases, then Defendant breached the Contract because there were no

corresponding cost increases to pass through to Plaintiff. See id. Plaintiff also argues that to the

extent that the rate increases were Section 5(b) rate increases, the invoices did not provide

sufficient notice as envisioned in the Contract, and Defendant therefore violated the notice

requirement for Section 5(b) irrespective of the invoices. See id. at 13.1

The Court agrees with Plaintiff. The Complaint alleges that Defendant’s rate increases were

a breach of Section 5(a) or Section 5(b). See ECF No. [35] ¶ 4 (alleging that the rate increases did

1 As noted below, Plaintiff contends that the Court cannot address the adequacy of notice at this stage of

the proceedings and argues that the invoices are not sufficient notice only in the alternative. See ECF No.

[48] at 9-10, 13.

not meet the requirements of Section 5(a) “and/or” Section 5(b)). Defendant misconstrues

paragraph 34 of the Complaint to argue that Plaintiff alleges that Section 5(a) was not breached.

See ECF No. [40] at 14. In paragraph 34, Plaintiff alleges that because there was no advance notice

of rate increases as required by Section 5(b), Defendant’s rate increases “must have thus complied

with [Section] 5(a) to comply with Plaintiff’s contract.” See ECF No. [35] ¶ 34. Section 5(a) rate

increases, in turn, require corresponding cost increases to pass through to Plaintiff, and because

there were no cost increases, Plaintiff alleges that Defendant breached Section 5(a). See id.

(“[B]ecause the increase was not preceded by prior written Notice, it did not satisfy [Section] 5(b)

and could only have possibly been a [Section] 5(a) increase. But this increase did not satisfy the

conditions stated in [Section] 5(a) either . . . . Hence, the increase breached the contract.”). In other

words, Plaintiff alleges that Defendant breached either Section 5(a) or Section 5(b). Furthermore,

it is apparent that Plaintiff alleges its claims in such a manner because Defendant never informed

Plaintiff of the reason for the rate increases. See id. (“Defendant’s general policy and practice

during all relevant times has in fact been not to provide prior written Notice of its increases.”

(emphasis in original)); see also id. ¶¶ 38-40. By alleging either a breach of Section 5(a) or Section

5(b), Plaintiff adequately alleges a breach of the Contract.2,3

2 To the extent that Defendant argues that Defendant can never breach Section 5(a) because it “contains no

promise or obligation that [Defendant] is bound to perform,” ECF No. [52] at 4, the Court is not persuaded.

If Defendant designated a rate increase as a Section 5(a) rate increase, when there was no corresponding

increase in costs to pass through, then Defendant would have breached Section 5(a).

3 Lastly, the Court is not persuaded by Defendant’s argument that the plain language of the Contract does

not require Defendant to explain its service rate increases. See ECF No. [40] at 15. The Contract requires

Defendant to provide advance notice of rate increases for Section 5(b) increases but not Section 5(a)

increases. ECF No. [35] ¶ 26; see also [35-1] at 3. Therefore, any advance notice of a rate increase would

have effectively been an explanation that the rate increase was a Section 5(b) rate increase. Because the

plain language of the Contract requires advance notice of only Section 5(b) rate increases, Defendant was

required to at least provide an explanation of whether the rate increase was a Section 5(b) rate increase by

providing advance notice of Section 5(b) rate increases.

b. Allegations of Materiality

Defendant next argues Plaintiff fails to plead that any alleged breach was material.

Defendant contends that the delayed timing of the notice of rate increases, through its monthly

invoices reflecting increased rates, was not a material breach. See ECF No. [40] at 15-19.

Defendant argues that the invoices provided adequate notice of the rate increases and that the

delayed timing of the rate increases is not a material breach because Plaintiff could still exercise

its right to object to the rate increases. See id. Plaintiff disputes Defendant’s interpretation of the

Contract and argues that materiality and adequacy of notice cannot be determined at this stage of

the proceedings. See ECF No. [48] at 9-14.

The Court agrees with Plaintiff. The disputed materiality of the alleged breach and the

adequacy of notice are factual issues, which cannot be determined when addressing a motion to

dismiss. See Salem Homes of Fla., Inc. v. Res-Care, Inc., 3:19-CV-333-J-39MCR, 2020 WL

11362262, at *10 (M.D. Fla. Mar. 30, 2020) (holding that the adequacy of notice is an issue of fact

that cannot be determined on a motion to dismiss). Further, to the extent that the Parties have

differing interpretation of the Contract, the Court cannot address such issues at this stage of the

proceedings. See Managed Care Solutions, Inc. v. Cmty. Health Sys., Inc., No. 10–60170–CIV,

2011 WL 6024572, at *8 (S.D. Fla. Dec. 2, 2011) (“A determination of the proper interpretation

of the contract should be decided at the summary judgment stage, not in a ruling on a[ ] motion to

dismiss.” (alteration added)); Geter v. Galardi S. Enters., Inc., 43 F. Supp. 3d 1322, 1328 (S.D.

Fla. 2014).

To survive a motion to dismiss, Plaintiff only needs to allege the elements of a breach of

contract claim. Plaintiff’s allegation that Defendant did not send advance notice of rate increases

– other than through monthly invoices, which allegedly did not constitute proper notice as

contemplated by the Contract – and that Defendant consequently foreclosed Plaintiff’s right to

object to overcharges is sufficient to allege a material breach for the purposes of surviving a motion

to dismiss.4

c. Voluntary Payment Doctrine

Defendant argues that the voluntary payment doctrine bars Plaintiff’s claims because

Plaintiff voluntarily paid the increased rates. See ECF No. [40] at 19-21. Plaintiff relies on Deere

Constr., LLC v. Cemex Constr. Materials Fla., LLC, 198 F. Supp. 3d 1332, 1342 (S.D. Fla. 2016),

to argue that “the voluntary payment doctrine is an affirmative defense that may not be raised on

a motion to dismiss, as it entails a fact-based inquiry not suited for resolution on a Rule 12(b)(6)

motion.” ECF No. [48] at 14; see also United States v. Cayman Vill. Condo. Ass’n, Inc., 12-61797-

CIV, 2013 WL 1665846, at *1 (S.D. Fla. Apr. 17, 2013) (“[T]he relevant case authorities make

plain, the issue of voluntary payment often entails a fact-based inquiry and is not suited for

resolution at the dismissal stage.”). Defendant argues that the voluntary payment doctrine can be

considered at this stage of the proceedings because all of the relevant facts are apparent from the

face of the Complaint. See ECF No. [40] at 19-20, n.8; see also ECF No. [52] at 10.

The Court agrees with Defendant to the extent that the Court can consider the voluntary

payment doctrine in the context of a motion to dismiss if all the relevant facts are evident from the

Complaint. However, in this case, all the relevant facts are not evident from the Complaint. As

Plaintiff correctly notes, “[t]he voluntary payment doctrine requires the party asserting it to show

4 Defendant appears to cite Vorst v. TBC Retail Grp., Inc., 2012 WL 13026643, at *3 (S.D. Fla. Apr. 12,

2012), for the proposition that Plaintiff must allege the materiality of a breach. See ECF No. [40] at 18.

However, the Court notes that Vorst did not impose such a requirement on the plaintiff. The court in Vorst

did not analyze the materiality of any breach. See 2012 WL 13026643. Instead, after a relatively brief

discussion of the breach of contract claim, the court granted the motion to dismiss because the plaintiff

failed to identify any provision of the contract that was breached, not because the plaintiff failed to allege

the materiality of any alleged breach. See id. In this case, Plaintiff identified specific provisions of the

Contract that were allegedly breached. See ECF No. [35] ¶ 34. Therefore, Vorst is inapposite.

that the person who made the payment had full knowledge of the relevant facts, including allegedly

wrongful conduct.” ECF No. [48] at 14 (quoting Carrero v. LVNV Funding, LLC, No. 11-62439-

CIV, 2014 WL 6433214, at *6 (S.D. Fla. Oct. 27, 2014)). The Complaint alleges that Plaintiff did

not have “full knowledge of the facts.” ECF No. [35] ¶ 40. As discussed above, Plaintiff includes

specific allegations that Plaintiff was unaware of the reason for the rate increases. See id. Because

Plaintiff alleges not to have had full knowledge of the relevant facts, all of the necessary facts for

the voluntary payment doctrine are not evident from the Complaint. Therefore, the Court cannot

consider the voluntary payment doctrine in addressing the Motion to Dismiss.5 Defendant may, of

course, raise the issue again at summary judgment.6

d. Allegations of Damages

Defendant contends that Plaintiff fails to allege that it suffered damages due to the alleged

breach. See ECF No. [40] at 21. Defendant’s argument is premised on the contention that the notice

provision does not provide that “time is of the essence,” and that the delayed notice did not

discharge Plaintiff’s reciprocal performance obligation. See id. at 21-22.7 According to Defendant,

Plaintiff could have also simply objected to all rate increases upon receiving delayed notice, and

therefore Plaintiff did not lose its right to object to Section 5(b) rate increases. See id. Defendant

5 To the extent that Defendant relies on Sanchez v. Time Warner, Inc., 1998 WL 834345, at *2 (M.D. Fla.

Nov. 4, 1998), to argue that the Court can consider the voluntary payment doctrine on a motion to dismiss,

see ECF No. [40] at 19, n.8, the Court is not persuaded. In Sanchez, all of the necessary facts were apparent

from the face of the complaint. See 1998 WL 834345, at *2 (“It is apparent from Plaintiff’s Amended

Complaint that she entered into a contract with Defendant. Additionally, it is clear from her Amended

Complaint that Plaintiff knew failure to pay her bill within the time frame specified in Defendant’s

‘Payment Policy’ would trigger the assessment of a $6.00 late charge. Further, Plaintiff admits Defendant

assessed her with at least one late charge, which she paid. These facts implicate the voluntary payment rule

and act to bar the claims alleged.”). Therefore, the plaintiff had full knowledge of the relevant facts in

Sanchez. As discussed above, the same cannot be said in this case.

6 The Court need not address Plaintiff’s arguments in the alternative for why the voluntary payment doctrine

is not applicable in this case.

7 Following Defendant’s logic, Plaintiff was obligated to pay the increased rates and suffered no damages

when it chose to satisfy its contractual obligations.

lastly argues that the Complaint only alleges damages for “customers,” rather than Plaintiff

specifically. See id. at 10 (citing ECF No. [35] ¶ 30). Plaintiff argues that the Court cannot

determine the adequacy of the delayed notice in addressing a motion to dismiss. See ECF No. [48]

at 9. Plaintiff also argues that without being informed of whether the rate increases were due to

Section 5(a), for which Plaintiff could not object, or due to Section 5(b), for which Plaintiff could

object, Plaintiff could not exercise its right to object. See id. at 12. Plaintiff also notes that the

Complaint alleges that Plaintiff suffered damages in the form of massive overcharges. See id. at 6.

The Court agrees with Plaintiff. First, as noted above, in addressing a motion to dismiss,

the Court cannot engage in contract interpretation to determine whether the notice provision

implicitely provides that “time is of the essence.” See Managed Care Solutions, Inc., 2011 WL

6024572, at *8. As such, Defendant’s argument that the notice provision does not provide that

“time is of the essence” is unavailing at this stage of the proceedings. Next, the Complaint alleges

that “Plaintiff and Class Members” paid massive overcharges, and that as a result, “Plaintiff seeks

damages.” Id. ¶¶ 4, 6, 7. As such, Plaintiff alleges its own damages for the breach of contract

claim.8

The Complaint also alleges that Plaintiff was not informed of whether the rate increases

were pursuant to Section 5(a) or Section 5(b), and as a result, Plaintiff could not exercise its right

to object to Section 5(b) rate increases. See ECF No. [35] ¶ 29. The Court is not persuaded by

Defendant’s argument that Plaintiff could have simply objected to all rate increases, even if

Plaintiff was not aware of the reason for the rate increase, and that Plaintiff, therefore, did not lose

its right to object. The Contract only sets forth the right to object for Section 5(b) rate increases,

8 Defendant cites a paragraph in the Complaint in which Plaintiff alleges damages suffered by “customers”

rather than Plaintiff specifically, see ECF No. [40] at 10, but the argument is unpersuasive. By entering into

the Contract, Plaintiff became one of Defendant’s customers. See ECF No. [35] ¶ 18.

not for Section 5(a) rate increases. ECF No. [35] ¶ 26; see also [35-1] at 3. Therefore, blindly

objecting to all rate increases, without being aware of the reason for the rate increases, would

require Plaintiff to risk attempting to exercise a nonexistent right. Plaintiff was not obligated to do

so. Plaintiff sufficiently alleges that Defendant’s failure to give notice of the reason for the rate

increases resulted in Plaintiff’s inability to exercise its right to object. The Complaint alleges that

Plaintiff suffered damages as a result of not being properly notified of the reason for the rate

increases. As such, Count I should not be dismissed.

ii. Count II

In Count II, Plaintiff asserts a breach of the duty of good faith and fair dealing against

Defendant. See ECF No. [35] ¶¶ 60-67. In the Motion, Defendant argues that Plaintiff fails to state

a breach of the duty of good faith and fair dealing because Plaintiff fails to allege that Defendant

breached the Contract. See ECF No. [40] at 23-24. Defendant further argues that Count II should

be dismissed because it seeks to vary the express rights and obligations of the Contract. See id. at

24. Plaintiff responds that Defendant’s first argument is unavailing because the Complaint alleges

that Defendant breached the Contract. See ECF No. [48] at 18. Plaintiff contends that Defendant’s

second argument is unpersuasive because the Contract requires notice of Section 5(b) rate

increases, Count II is based on Defendant’s failure to provide adequate notice as required by the

Contract, and Count II, therefore, does not attempt to vary the express rights and obligations of the

Contract. See id. at 18-19.

The Court agrees with Defendant to the extent that a claim for a breach of the duty of good

faith and fair dealing requires the breach of an express term of a contract. See Centurion Air Cargo,

Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1152 (11th Cir. 2005) (“[A] claim for a breach of

the implied covenant of good faith and fair dealing cannot be maintained under Florida law in the

absence of a breach of an express term of a contract.”). However, as noted above, the Complaint

alleges a a breach of an express term of the Contract. The Complaint alleges that Defendant

breached Section 5(a) or Section 5(b) of the Contract by raising rates despite the lack of cost

increases or by failing to provide adequate notice. See ECF No. [35] ¶ 34. Further, because Count

II is based on the alleged failure to provide adequate notice and the contention that Plaintiff could

not exercise its right to object, Plaintiff does not attempt to vary the express terms of the Contract

through Count II. As such, Count II should not be dismissed.

B. Class Certification

The Court now turns to Defendant’s request to strike Plaintiff’s class allegations.

Defendant argues that the Court should strike Plaintiff’s class allegations because they do not

satisfy Rule 23. See ECF No. [40] at 24-28. Defendant contends that the proposed class definition

is overbroad because it includes class members who may not have signed a similar contract with

Defendant and have no possible relation to Plaintiff’s breach of contract allegations. See id. at 26.

Defendant also argues that the issue of notice is a purely individual issue. See id. at 28. Plaintiff

argues that the dismissal of class allegations at the pleading stage is an “extreme remedy” that is

appropriate only where Defendant can demonstrate from the face of the Complaint that it will be

impossible to certify the class. ECF No. [48] at 19 (quoting Randy Rosenberg, D.C., P.A. v. GEICO

Gen. Ins. Co., No. 19-CV-61422, 2019 WL 6828150, at *6 (S.D. Fla. Dec. 13, 2019) (Bloom, J.)).

The Court agrees with Plaintiff. The Eleventh Circuit requires a “rigorous analysis” when

addressing class certification, see Vega, 564 F.3d at 1266, and courts generally cannot perform

such an analysis until discovery has taken place, see MSPA Claims I, LLC v. Century Sur. Co., No.

16-20752-CIV, 2017 WL 998282, at *5 (S.D. Fla. Mar. 15, 2017) (“Because the evidentiary record

has not yet been developed, the Court cannot yet make a rigorous analysis.”); see also Mills v.

Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (“[P]recedent . . . counsels that . . . the

district court will need to go beyond the pleadings and permit some discovery and/or an evidentiary

hearing to determine whether a class may be certified.”).

While Defendant raises a legitimate concern that the contract Defendant signed with other

class members may not be similar to the Contract Defendant signed with Plaintiff, see ECF No.

[40] at 26, Plaintiff alleges that the proposed class had identical or substantially similar contracts.

See ECF No. [35] ¶¶ 42-43. Even if discovery revealed that such allegations were not true, the

Court can address the issue of similar or dissimilar contracts at the class certification stage of the

proceedings and certify subclasses if necessary. See Fed. R. Civ. P. 23(c)(5). Based on Plaintiff’s

allegations, it is not evident it would be “impossible” to certify the proposed class or cure

overbroad class definitions after discovery.

Defendant relies on In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., 321

F.R.D. 430, 444 (N.D. Ga. 2017), and Cohen, D.M.D., M.S. v. Implant Innovations, Inc., 259

F.R.D. 617, 642 (S.D. Fla. 2008), to argue that notice is an individual issue that cannot be

addressed on a class-wide basis, see ECF No. [40] at 28, but the cases are inapposite. As Plaintiff

correctly points out, the two cases involved notice from each of the customers to the defendant,

which is an individual issue. See ECF No. [48] at 21. In contrast, the disputed notice here was from

Defendant to the customers, and the Complaint alleges that Defendant engaged in a generalized

practice regarding notice to all similarly situated customers. See ECF No. [35] ¶¶ 34, 42. Therefore,

the issue of notice does not create individual issues in this case, and Defendant’s request to strike

class allegations is denied.

III. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

Case No. 21-cv-62123-BLOOM/Valle

1. Defendant’s Motion to Dismiss Amended Complaint and to Strike Class

Allegations, ECF No. [40], is DENIED.

2. Defendant shall file its Answer to Plaintiff’s Complaint by no later than February

8, 2022.

DONE AND ORDERED in Chambers at Miami, Florida, on January 25, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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