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

> District Court, S.D. Florida · January 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10120103

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** January 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120103. Public record. Not legal advice.