Alin Pop v. LuliFama.com LLC

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11048

____________________

ALIN POP,

individually and on behalf of

all those similarly situated,

Plaintiff-Appellant,

versus

LULIFAMA.COM LLC,

MY LULIBABE LLC,

LOURDES HANIMIAN,

a.k.a. Luli Hanimian,

TAYLOR MACKENZIE GALLO,

a.k.a. Tequila Taylor,

ALEXA COLLINS, et al.,

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2 Opinion of the Court 24-11048

Defendants-Appellees,

HALEY PALVE,

a.k.a. Haley Ferguson,

Defendant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-02698-VMC-UAM

____________________

Before ROSENBAUM, BRANCH, and KIDD, Circuit Judges.

BRANCH, Circuit Judge:

Plaintiff Alin Pop appeals the district court’s dismissal of his

putative class action complaint against LuliFama.com LLC (“Luli

Fama”) and other defendants for a violation of the Florida

Deceptive and Unfair Trade Practices Act (“FDUTPA”).

In his complaint, Pop alleged that he purchased Luli Fama

swimwear after seeing various social media influencers, whom Pop

also named as defendants, wearing the swimwear and tagging Luli

Fama in Instagram posts. At the time of his purchase, Pop believed

that the influencers were giving their unpaid endorsements of the

Luli Fama products. As it turned out, however, Pop was mistaken;

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Luli Fama was actually paying the influencers for their

endorsements. And Pop’s mistake stemmed from the fact that

neither Luli Fama nor the influencers disclosed the payments. Pop

alleged that failing to disclose the payments violated FDUTPA,

which generally prohibits, as relevant here, “unfair or deceptive

acts or practices in the conduct of any trade or commerce.” Fla.

Stat. § 501.204(1).

The district court dismissed Pop’s complaint for, among

other things, failing to comply with Federal Rule of Civil Procedure

9(b). According to the court, because Pop’s FDUTPA claim

sounded in fraud, Rule 9(b)’s particularity requirement—which

requires plaintiffs “alleging fraud” to “state with particularity the

circumstances constituting fraud”—applied to the claim. Fed. R.

Civ. P. 9(b). Pop’s complaint, however, failed to allege the facts

underlying his claim with the required particularity. The court

therefore dismissed the complaint with prejudice, and Pop now

appeals.

After careful review and with the benefit of oral argument,

we agree with the district court that Rule 9(b)’s particularity

requirement applies to FDUTPA claims that sound in fraud and

that Pop’s complaint asserted such a claim. We also agree that Pop

failed to allege the facts underlying his claim with the required

particularity. We thus hold that the district court correctly

dismissed Pop’s complaint. And because Pop failed to properly

request leave to amend, we hold that the district court was not

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4 Opinion of the Court 24-11048

required to give Pop another chance to plead his claim, at least not

under the circumstances of this case. Accordingly, we affirm.

I. Background

A. Factual Background1

This case arises from the allegedly deceptive and misleading

online promotion of Luli Fama products. Pop sues on behalf of

himself and all others similarly situated. There are 11 defendants.

The first group of defendants consists of Luli Fama; My LuliBabe,

LLC; and Lourdes Hanimian. And the second group consists of

Taylor Mackenzie Gallo, Alexa Collins, Allison Martinez, Cindy

Prado, Gabrielle Epstein, Haley Palve, Leidy Amelia Labrador, and

Priscilla Ricart (“the influencer defendants”). Relevant here, Pop’s

complaint asserted a FDUTPA claim against Luli Fama and the

influencer defendants. 2 In support of the claim, the complaint

alleged as follows:

“Luli Fama is a swimwear designer, manufacturer[,] and

reseller that came to fame with the rise of Instagram.” Lourdes

1 Because this case reaches us at the motion to dismiss stage, “all well-pleaded

facts are accepted as true, and the reasonable inferences therefrom are

construed in the light most favorable to the plaintiff.” Bryant v. Avado Brands,

Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999).

2 Pop also alleged an unjust enrichment claim and a negligent

misrepresentation claim against all the defendants. Because he did not contest

the district court’s dismissal of those claims in his opening brief on appeal, he

has abandoned those claims. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 680–81 (11th Cir. 2014). We thus do not discuss the claims any further.

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Hanimian is the “founder, owner, CEO[,] and product designer for

Luli Fama.” “She personally oversees all of [Luli Fama’s]

operations, swimwear design, manufacturing, marketing, [and]

social media.” “Despite having two brick-and-mortar stores in

Miami-Dade, Luli Fama thrives due to its sales over the [i]nternet.”

Indeed, “most of Luli Fama’s online sales come from social media,

including Instagram.” To drive its online sales, Luli Fama partners

with social media “influencers,” who “advertise” Luli Fama’s

products online. Hanimian “supervises Luli Fama’s relationship

with the [i]nfluencers.” According to the complaint, “[a]sking

social media influencers to advertise its products and disguise such

advertising as honest consumer recommendation is a large part of

Luli Fama’s strategy.” Luli Fama makes “tens of millions of

dollars” through influencer advertising, and in return, it pays

“significant monies” to the influencers that advertise its products

online.

Pop “is following Defendants on Instagram.” The influencer

defendants that Pop is following on Instagram are his “favorite

influencers.” At an unspecified time, Pop saw on Instagram that

unspecified influencer defendants were wearing unspecified Luli

Fama “products” in unspecified Instagram posts in which they

tagged Luli Fama. According to Pop, “by wearing and tagging Luli

Fama products in their posts, the [i]nfluencers indisputably

advertise[d] and endorse[d] the[] products.” But despite “being

compensated” by Luli Fama for their advertisements and

endorsements, the influencer defendants failed to disclose their

financial relationship with Luli Fama. Indeed, “none of the

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[i]nfluencers use[d] the ‘paid partnership’ tag suggested by the FTC

or other disclosures like ‘#ad,’ or ‘#sponsored.’”

“Pop followed . . . what he believed to be the honest advice

of the [i]nfluencers” regarding the “products.” “Given the fact that

the products were worn by his favorite influencers, [Pop] decided

to purchase Luli Fama products and placed Order 1152147.” The

complaint did not state which products Pop purchased or which

defendants’ endorsements led to his purchase, but the complaint

made clear that Pop purchased “such products as a present for his

spouse.”

Pop alleged that by “[r]elying on the undisclosed paid

advertising, [he] and the class members purchased products that

proved to be of a lower value than the price paid and therefore

suffered damages.” 3 Pop also alleged that he “paid a premium for

Luli Fama swimwear,” and that “[c]ompared to other swimwear

brands (i.e., Victoria’s Secret), Luli Fama is approximately 100%

more expensive.” When he tried to return the products, Luli Fama

did not accept the return. And when he “tried to sell the unused

product on eBay,” he “received only small offers that barely

covered shipping, showing one more time that the value of the

products is much lower than the price he paid.”

3 Pop did not explain how the products he purchased were “of a lower value

than the price paid.” He alleged that the products “proved to be of an inferior

quality,” but again, he did not provide any details to support his assertion.

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As indicated, the gist of the complaint was that the

influencer defendants “misrepresented the material relationship

they have with [Luli Fama] by promoting Luli Fama products

without disclosing the fact that they were paid to do it.” In other

words, “both Luli Fama and the [i]nfluencers devised a scheme in

which the influencers tag or recommend Luli Fama products,

pretending they are disinterested and unaffiliated consumers.”

All that said, the complaint did not specify many details,

including which defendants’ posts Pop saw, when he saw those

posts, which products the defendants were promoting, or exactly

how the defendants were promoting the products. Indeed, the

complaint’s substantive allegations mentioned a specific

defendant’s name and posts only three times. And even then, the

allegations were either still lacking in detail or were irrelevant.

First, on pages five and six, the complaint provided screenshots of

two of Alexa Collins’s posts in which she allegedly “advertised for

Luli Fama on Instagram . . . without mentioning even once that

she is paid.” But the complaint did not allege that those posts

caused Pop to purchase Luli Fama products, or that the products

that Collins was wearing were the ones that Pop bought. Nor did

the complaint state when Collins made the posts. 4 Second, on

pages 11 and 12, the complaint stated that “Defendant Alexa

Collins advertises alcohol on her Instagram account without

4 It appears that one post has a date, but the date is illegible.

The other post

appears to state only that it was posted “5 hours ago.” Pop’s complaint did

not provide any relevant information about when the posts were made.

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disclosing that she is paid to do so,” and provided two posts in

which Collins allegedly promoted alcohol. But the complaint did

not connect those posts to any harm suffered here. And third, on

pages 13 and 14, the complaint provided two posts by Defendant

Gabrielle Epstein to show that “many of the [i]nfluencers are

familiar with the FTC guidelines and properly display the required

disclosures” at times. (emphasis added). Again, the posts were

seemingly unconnected to the allegations underlying Pop’s claim.

The complaint also contained numerous allegations about

influencer advertising in general. For example, it asserted that “[i]n

the last three years, Instagram has become one of the most popular

ways to influence consumer behavior on social media.” The

complaint also pointed out that the FTC has sought to curb

deceptive advertising on social media. And finally, the complaint

stated that, generally, influencers are “acting as advertisers for hire

by,” for example, “posting fake reviews for sponsored products or

failing to disclose that they were paid to create the content

displayed on their profile.” However, the complaint did not

connect any of these general allegations to this case.

Given the above facts, Pop alleged that Luli Fama enabled

the influencers to “engage[] in a deceptive act or unfair practice, by

engaging in deceptive conduct and statutory violations.” He also

alleged that the influencers “engaged in a deceptive act or unfair

practice, by engaging in fraud and statutory violations,” and that

by “failing to disclose material connections,” Luli Fama and the

influencers “violated Section 5(a) of 15 U.S.C. § 45(a) which

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represents a per se violation of ‘FDUTPA.’” Pop sought damages

totaling over $10,000,000 for the entire class, as well as an

injunction, declaratory judgment, and attorney’s fees.

B. Procedural History

Pop initially sued in Florida state court. The defendants

removed the case to the Middle District of Florida, where the case

proceeded on the original state-court complaint.

The defendants moved to dismiss the complaint. 5 The

district court granted the defendants’ motions with prejudice. 6 The

district court held that because Pop’s FDUTPA claim “sound[ed] in

fraud,” Federal Rule of Civil Procedure 9(b)’s particularity

requirement 7 for allegations of fraud applied. Under that standard,

Pop’s complaint failed because he failed to plead (1) which posts

led him to purchase Luli Fama products, (2) which defendants

5 After failing to serve Haley Palve, Pop voluntarily dismissed all claims against

her.

6 The district court initially dismissed all claims against all defendants except

Gabrielle Epstein, whose motion the district court denied as moot. Before

ruling on the defendants’ motions to dismiss, the district court dismissed

Epstein from the case after a purported settlement. But Epstein subsequently

moved to reopen the case against her, and the district court granted her

motion. The court then ruled on and granted Epstein’s previous motion to

dismiss on the merits.

7 Rule 9(b) provides: “In alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s mind may be alleged

generally.” Fed. R. Civ. P. 9(b).

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made those posts, (3) when the defendants made those posts,

(4) which products he purchased, (5) how or why the products

were of an inferior quality, or (6) why he was unable to resell the

products. The district court then held that the complaint would

fail even under the ordinary pleading requirements because Pop

failed to plead, as a legal matter, the required elements of

FDUTPA: a deceptive or unfair trade practice, causation, and

actual damages. The district court thus granted the motions to

dismiss the FDUTPA claim with prejudice, finding that further

amendment would be futile.

Pop timely appealed.

II. Standard of Review

We review de novo the grant of a motion to dismiss,

accepting all well-pleaded facts as true and construing them in the

light most favorable to the plaintiff. Mills v. Foremost Ins. Co., 511

F.3d 1300, 1303 (11th Cir. 2008). We also review de novo the district

court’s denial of leave to amend a complaint on futility grounds.

Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1236 (11th Cir. 2008).

“[W]e may affirm on any ground supported by the record,

regardless of whether that ground was relied upon or even

considered below.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th

Cir. 2017).

III. Discussion

Pop advances three main arguments on appeal. First, he

argues that the district court erred in holding that Rule 9(b)’s

particularity requirement applies to his FDUTPA claim. Second,

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he argues that his complaint stated a plausible FDUTPA claim.

And third, he argues that even if his complaint failed to state a

claim, the district court should have granted him leave to amend

rather than dismissing with prejudice.

We address each issue in turn. Ultimately, we conclude that

all of Pop’s arguments fail, and we therefore affirm.

A. Rule 9(b)’s particularity requirement applies to Pop’s

FDUTPA claim

We divide this section into two parts. First, we establish that

Rule 9(b)’s particularly requirement applies to FDUTPA claims

that sound in fraud. Second, we explain that because Pop’s

FDUTPA claim sounds in fraud, Rule 9(b) applies to his claim.

1. Rule 9(b)’s particularity requirement applies to

FDUTPA claims that sound in fraud

The district court concluded that Rule 9(b)’s particularity

requirement applied to Pop’s FDUTPA claim because the claim

“sound[ed] in fraud.” On appeal, Pop argues that Rule 9(b) never

applies to FDUTPA claims. The defendants, on the other hand,

argue that though Rule 9(b) does not always apply to FDUTPA

claims, it does when those claims sound in fraud.

Whether and when Rule 9(b)’s particularity requirement

applies to FDUTPA claims is an issue of first impression in this

Circuit. After review, we agree with the defendants and hold that

Rule 9(b)’s particularity requirement applies to FDUTPA claims

when those claims sound in fraud.

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The pleading standards in the Federal Rules of Civil

Procedure “appl[y] to state-law claims litigated in federal court.”

Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1130 (11th Cir. 2019).

Under Federal Rule of Civil Procedure 8, a plaintiff’s 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). This

rule requires a plaintiff to plead “sufficient factual matter, accepted

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

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. “Rule 8 . . . does not require ‘detailed

factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. (quoting

Twombly, 550 U.S. at 555).

“Rule 8(a)’s simplified pleading standard applies to all civil

actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534

U.S. 506, 513 (2002). Rule 9(b) is one such exception. See id. Under

that rule, “[i]n alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake.” Fed.

R. Civ. P. 9(b) (emphasis added). Courts refer to this heightened

pleading standard as Rule 9(b)’s “particularity requirement.” See

Iqbal, 556 U.S. at 686.

Per Rule 9(b)’s text, the particularity requirement applies

when a plaintiff “alleg[es] fraud.” Fed. R. Civ. P. 9(b). Whether a

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plaintiff “alleg[es] fraud” under Rule 9(b) depends on the factual

allegations underlying a plaintiff’s claim—not how the plaintiff

styles his claim. See Young v. Grand Canyon Univ., Inc., 57 F.4th 861,

875 (11th Cir. 2023) (finding that Rule 9(b) applied to the plaintiff’s

Arizona Consumer Fraud Act claim because the claim was “based

on allegations that [the plaintiff] relied on [the defendant’s]

intentional misrepresentations to his own detriment” (emphasis

added)); Kahn v. Walmart Inc., 107 F.4th 585, 601 (7th Cir. 2024)

(explaining that “[t]he applicable pleading standard does not turn

on a formalistic invocation” of certain words, but “depends instead

on the plaintiff’s factual allegations”). For that reason, we have

held that so long as a claim “sound[s] in fraud” based on the

allegations underlying the claim, Rule 9(b)’s particularity

requirement applies. Wilding, 941 F.3d at 1127. That the plaintiff

does not call his claim “fraud” is not dispositive. See id.

Applying these principles, we have found that unjust

enrichment, civil theft, and negligent misrepresentation claims that

“sound in fraud” must comply with Rule 9(b)’s particularity

requirement. See Omnipol, A.S. v. Multinational Def. Servs., LLC, 32

F.4th 1298, 1307 n.11 (11th Cir. 2022) (“Because [the plaintiffs’]

claims of civil theft and unjust enrichment ‘sound in fraud,’ they

are subject to Rule 9(b)’s requirements.” (quoting Wilding, 941 F.3d

at 1127)); Lamm v. State St. Bank & Tr., 749 F.3d 938, 951 (11th Cir.

2014) (holding that “Rule 9(b)’s heightened pleading standard

applies to negligent misrepresentation claims” under Florida law

because those claims “sound[] in fraud” (quotation omitted)). And

we came to those conclusions even though the plaintiffs did not

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style their claims as “fraud,” and even though the elements of

unjust enrichment, civil theft, and negligent misrepresentation do

not perfectly overlap with the elements of fraud.

As our precedent shows, then, the rule is that a claim that

“sounds in fraud” based on the allegations underlying the claim

must comply with Rule 9(b)’s particularity requirement. See, e.g.,

Wilding, 941 F.3d at 1127. Consistent with that rule, we hold today

that FDUTPA claims that sound in fraud must comply with Rule

9(b).

Pop resists our conclusion, arguing that FDUTPA claims are

different because, as he correctly points out, a “plaintiff need not

prove the elements of fraud to sustain an action under” FDUTPA.

Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. 1st DCA 2000). But

as shown above, that the elements of a FDUTPA claim do not

perfectly overlap with the elements of a fraud claim does not

prevent Rule 9(b)’s particularity requirement from applying to a

FDUTPA claim that sounds in fraud based on the factual allegations

underlying the claim. See Wilding, 941 F.3d at 1127 (applying Rule

9(b) to negligent misrepresentation claim because the claim

“sound[ed] in fraud” (emphasis added)); see also Olin v. Dakota Access,

LLC, 910 F.3d 1072, 1075 (8th Cir. 2018) (“A claim may sound in

fraud even though it is brought under a statute that also prohibits

non-fraudulent conduct.”). Tellingly, the elements of unjust

enrichment, civil theft, and negligent misrepresentation claims also

do not perfectly overlap with the elements of fraud. Yet we have

still held that those claims can nevertheless “sound in fraud” and

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be subject to Rule 9(b) based on the factual allegations supporting

them. See Omnipol, 32 F.4th at 1307 n.11; Lamm, 749 F.3d at 951.

Pop’s argument thus runs contrary to our precedent.

Nor is it relevant, as Pop points out, that FDUTPA “is a

remedial statute designed to protect consumers.” Fonte v. AT&T

Wireless Servs., Inc., 903 So. 2d 1019, 1024 (Fla. 4th DCA 2005).

Nothing in Rule 9(b)’s text suggests that the particularity

requirement turns on whether the statute providing the cause of

action at issue is “remedial” or “designed to protect consumers.”

See Fed. R. Civ. P. 9(b). Indeed, we, along with other circuits, have

acknowledged as much by applying Rule 9(b) to claims asserted

under other states’ remedial consumer protection statutes. See,

e.g., Young, 57 F.4th at 875 (applying Rule 9(b) to a claim asserted

under the Arizona Consumer Fraud Act); Kahn, 107 F.4th at 601

(explaining that, under Seventh Circuit precedent, “[a] deceptive

practices claim under [Illinois’s consumer protection statute] must

meet Rule 9(b)’s heightened pleading standard”); Kearns v. Ford

Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (“[W]e have

specifically ruled that Rule 9(b)’s heightened pleading standards

apply to claims for violations of [California’s consumer protection

statutes].”). We thus find Pop’s arguments unavailing.

We hold that FDUTPA claims that sound in fraud must

comply with Rule 9(b)’s particularity requirement. We now turn

to assessing whether Pop’s FDUTPA claim sounds in fraud.

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2. Pop’s FDUTPA claim sounds in fraud

We have not explored in depth how to determine whether

a claim “sounds in fraud” such that Rule 9(b) applies to the claim.

See, e.g., Young, 57 F.4th at 875 (finding that Rule 9(b) applied to the

plaintiff’s claim because the claim was “based on allegations that

[the plaintiff] relied on [the defendant’s] intentional

misrepresentations to his own detriment”); Lamm, 749 F.3d at 951

(stating summarily that negligent misrepresentation claims

“sound[] in fraud under Florida law” (citing Souran v. Travelers Ins.

Co., 982 F.2d 1497, 1511 (11th Cir. 1993) (Cox, J., concurring in part

and dissenting in part))). The most straightforward way of making

the determination is by comparing a plaintiff’s allegations to the

elements of common law fraud. See, e.g., Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1105–06 (9th Cir. 2003) (comparing plaintiff’s

allegations to California common law fraud to determine whether

Rule 9(b) applied to plaintiff’s claims). If a plaintiff’s allegations

closely track the elements of common law fraud, then the plaintiff’s

claim sounds in fraud for purposes of Rule 9(b). See id. If not, then

Rule 9(b) does not apply. 8

“Fraud has no all-embracing definition.” 37 Am. Jur. 2d

Fraud and Deceit § 1. But “all agree” that it encompasses the

following: “[A] false representation of a material fact made by one

who knew that it was false . . . , made to one who did not know

8 We acknowledge that more precise guidance might be needed in future

cases. But we decline to provide that guidance here because, as discussed

below, Pop’s allegations clearly sound in fraud.

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that it was false, with intent to deceive such person and to influence

his action, which did deceive such person and influence his action

to his damage.” United States v. Feldman, 931 F.3d 1245, 1266 (11th

Cir. 2019) (W. Pryor, C.J., concurring) (quotation omitted). Fraud

can consist of affirmative misrepresentations as well as

misrepresentations by omission. See id. at 1267; Marsteller ex rel.

United States v. Tilton, 880 F.3d 1302, 1311 (11th Cir. 2018) (“At

common law, fraud has long encompassed certain

misrepresentations by omission.” (quotation omitted)). At

bottom, the “basic conduct” that common law fraud targets is

“misrepresenting or concealing material facts.” SEC v. Jarkesy, 603

U.S. 109, 125 (2024).

Pop’s allegations—though meant to support a claim for a

violation of FDUTPA—closely track the elements of common law

fraud. To begin, Pop alleged that unknown influencer defendants

failed to disclose their compensation from Luli Fama, and therefore

“misrepresented the material relationship they ha[d] with the

brand.” That is, Pop alleged a “misrepresentation[] by omission.”

Marsteller, 880 F.3d at 1311. Pop also alleged that the influencers’

paid relationship with Luli Fama was “material.” The paid

relationship between the influencers and Luli Fama was

“undisclosed,” so Pop did not know about it. And, at least

according to Pop, failing to disclose the payments to the influencers

was “a large part of Luli Fama’s strategy” to “disguise [the

influencers’] advertising as honest consumer recommendation”; in

other words, the defendants’ deception was intentional. And

finally, Pop alleged that he “[r]el[ied] on the undisclosed paid

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advertising” in making his purchase and that he suffered damages

as a result.

Given these allegations, Pop’s FDUTPA claim—even

though it had different elements than fraud9—sounded in fraud.

See Feldman, 931 F.3d at 1266 (W. Pryor, C.J., concurring) (laying

out common law definition of fraud); see also Vess, 317 F.3d at 1103–

04 (holding that where a plaintiff “allege[s] a unified course of

fraudulent conduct and rel[ies] entirely on that course of conduct

as the basis of a claim,” the claim is “said to be ‘grounded in

fraud’”). Indeed, Pop’s complaint stated twice that the defendants

engaged in “fraud.” And he concedes on appeal that his

complaint’s “statement of facts include[d] fraudulent acts.” Rule

9(b) therefore applies to Pop’s FDUTPA claim.

Pop, however, stresses that he “d[id] not raise any claim for

fraud” and instead “limit[ed] his claim[] to [a] statutory violation[]

under FDUTPA.” But again, the factual allegations underlying the

claim—and not the claim’s styling—determine whether Rule 9(b)

applies. See Omnipol, 32 F.4th at 1307 n.11 (“Because [the plaintiffs’]

claims of civil theft and unjust enrichment ‘sound in fraud,’ they

are subject to Rule 9(b)’s requirements.” (quotation omitted));

9 The elements of a FDUTPA claim are “(1) a deceptive act or unfair practice;

(2) causation; and (3) actual damages.” City First Mortg. Corp. v. Barton, 988 So.

2d 82, 86 (Fla. 4th DCA 2008). Unlike fraud, FDUTPA does not require that

the complained-of practice deceive or induce the plaintiff himself; instead, it is

enough to show “that a reasonable person would have relied on the

representations” or been deceived by them. Latman v. Costa Cruise Lines, N.V.,

758 So. 2d 699, 703 (Fla. 3d DCA 2000).

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Lamm, 749 F.3d at 951 (holding that “Rule 9(b)’s heightened

pleading standard applies to negligent misrepresentation claims”

under Florida law because those claims “sound[] in fraud”

(quotation omitted)). Here, as discussed above, the complaint’s

allegations sound in fraud. And a “general disclaimer” that a

plaintiff is not alleging fraud cannot “immunize . . . nonfraud

claims from the Rule 9 requirements.” Wagner v. First Horizon

Pharm. Corp., 464 F.3d 1273, 1278 (11th Cir. 2006) (“First Horizon”).

Pop’s FDUTPA claim sounds in fraud, so Rule 9(b) applies. 10

We now analyze whether Pop’s complaint complied with Rule

9(b).

10 All of Pop’s FDUTPA theories are based on the allegations detailed above.

Because those allegations sound in fraud, it follows that all of Pop’s FDUTPA

theories sound in fraud. To be sure, Pop alleged generally that given the

allegations above, the defendants “engaged in a deceptive act or unfair

practice” in addition to “engaging in fraud.” That is, it seems that Pop tried to

distinguish his fraud-based FDUTPA theory from his deceptive-act-based or

unfair-practice-based FDUTPA theories. But, again, the nature of the

allegations supporting a claim—not the labels that a plaintiff uses—determines

the application of Rule 9(b). As discussed, Pop’s allegations sound in fraud.

And because those allegations were the only allegations underlying Pop’s

fraud, deceptive act, and unfair practice FDUTPA theories, all of Pop’s

FDUTPA theories sound in fraud. That Pop styled his theories as asserting a

“deceptive act” or an “unfair practice” in addition to “fraud” is not dispositive.

See Young, 57 F.4th at 875; Kahn, 107 F.4th at 601 (“The applicable pleading

standard does not turn on a formalistic invocation of the word ‘unfair.’ It

depends instead on the plaintiff’s factual allegations.” (citation omitted)).

We therefore need not decide whether a “deceptive act[s]” FDUTPA

claim or an “unfair practice[s]” FDUTPA claim based on different allegations

would be subject to Rule 9(b)’s particularity requirement. (We note, however,

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20 Opinion of the Court 24-11048

B. Pop failed to allege his FDUTPA claim in compliance with

Rule 9(b)

Under Rule 9(b), a plaintiff “alleging fraud” must “state with

particularity the circumstances constituting fraud.” Fed. R. Civ. P.

9(b). We have held that Rule 9(b) requires the plaintiff to allege

“the who, what, when[,] where, and how” of the fraudulent

conduct. Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th

Cir. 2006). Stated differently, the plaintiff must allege “(1) the

precise statements, documents, or misrepresentations made;

(2) the time, place, and person responsible for the statement; (3) the

content and manner in which these statements misled the

[p]laintiff[]; and (4) what the defendants gained by the alleged

fraud.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th

Cir. 2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116

F.3d 1364, 1380–81 (11th Cir. 1997)).

that the Seventh Circuit has held that “[a] deceptive practices claim under

[Illinois’s consumer protection statute] must meet Rule 9(b)’s heightened

pleading standard, but an unfair practices claim need not if it is not based on

fraud.” Kahn, 107 F.4th at 601.) Here, it is enough to say that because Pop’s

allegations sound in fraud, and all his FDUTPA theories depend on those same

allegations, Pop’s FDUTPA claim, as a whole, sounds in fraud. Cf. First

Horizon, 464 F.3d at 1277 (holding that “Rule 9(b) applies when the

misrepresentation justifying relief under the Securities Act”—which is a

“nonfraud” claim—“is also alleged to support a claim for fraud under the

Exchange Act and Rule 10(b)-5”); see also Vess, 317 F.3d at 1103 (finding that a

nonfraud claim is subject to Rule 9(b) when a plaintiff, although not required

to do so, “allege[s] a unified course of fraudulent conduct and rel[ies] entirely

on that course of conduct as the basis of [his] claim”).

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Pop’s complaint fell short of the Rule 9(b) standard. Pop did

not identify a single Instagram post that he or any putative class

members saw and relied on in which the influencer defendants

wore Luli Fama products or tagged Luli Fama. The closest Pop

came to doing so was on pages five and six of the complaint, where

he stated that “Defendant Alexa Collins, for example, advertised

for Luli Fama on Instagram more than ten times, without

mentioning even once that she is paid.” He then inserted two

screenshots of Collins’s posts. But critically, Pop did not allege

when those posts were made, 11 when he saw them, if he saw those

specific posts before purchasing Luli Fama products, or how those

posts caused him to purchase the products at issue here. Indeed,

he never even alleged which products he bought, much less how

the defendants inspired him to do so. Such allegations, or the lack

thereof, fail to allege “the who, what, when[,] where, and how” of

the allegedly wrongful conduct. Garfield, 466 F.3d at 1262. And

even if Pop had alleged the required information as to Collins, that

would not make up for his lack of allegations concerning all the

other defendants’ conduct. See Ambrosia Coal & Constr. Co. v. Pages

Morales, 482 F.3d 1309, 1317 (11th Cir. 2007) (explaining that under

Rule 9(b) a plaintiff cannot “lump[] together all of the defendants

in [his] allegations of fraud”).

From Pop’s allegations, all we know is that Luli Fama and

the influencer defendants “devised [some type of] scheme in which

[unspecified] influencers tag[ged] or recommend[ed],” at some

11 Again, any dates were either illegible or not provided.

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22 Opinion of the Court 24-11048

point, in some posts, “Luli Fama products, pretending they [were]

disinterested and unaffiliated consumers.” Because these

allegations do not specify which defendants made which posts,

what the posts said, when the posts were made, when Pop saw the

posts, or how—in any detail—the posts caused Pop or anyone else

to purchase which products, Pop’s complaint failed to comply with

Rule 9(b). The district court therefore properly dismissed Pop’s

complaint.

Having concluded that Pop’s complaint was properly

dismissed, we finally turn to determining whether the district court

was required to allow Pop to amend his complaint.

C. The district court did not err in dismissing Pop’s complaint

with prejudice

The district court dismissed Pop’s complaint with prejudice

because it found that further amendment would be futile. On

appeal, Pop argues that the pleading inadequacies identified by the

district court could have been fixed with amendment. In response,

the defendants defend the district court’s futility determination.

But they also offer another ground for affirmance, arguing that the

district court did not have to let Pop amend his complaint because

Pop failed to properly request leave to amend. As to this

alternative argument, Pop contends that district courts must

always give plaintiffs whose complaints are dismissed under Rule

9(b) at least one chance to amend. After review, we agree with the

defendants that because Pop failed to properly request leave to

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24-11048 Opinion of the Court 23

amend, the district court did not err in dismissing his complaint

with prejudice. 12

Federal Rule of Civil Procedure 15(a)(2) provides that a

district court “should freely give leave [to amend the complaint]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). We have held,

however, that “[a] district court is not required to grant a plaintiff

leave to amend his complaint sua sponte when the plaintiff, who is

represented by counsel, never filed a motion to amend nor

requested leave to amend before the district court.” Wagner v.

Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002)

(en banc). That is, “[a] district court may dismiss a complaint with

prejudice where the plaintiff fails to request leave to amend.”

Ounjian v. Globoforce, Inc., 89 F.4th 852, 862 (11th Cir. 2023).

Here, Pop did not properly request leave to amend his

counseled complaint. The only place that Pop requested leave to

amend was on the last page of his response in opposition to the

defendants’ motions to dismiss. We have held that “[w]here a

request for leave to file an amended complaint simply is imbedded

within an opposition memorandum, the issue has not been raised

properly.” Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277

(11th Cir. 2018) (quoting Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d

12 We recognize that the district court dismissed Pop’s complaint with

prejudice only because the court found that further amendment would be

futile. But as mentioned above, “[w]e may affirm on any ground supported

by the record, regardless of whether that ground was relied upon or even

considered below.” Waldman, 871 F.3d at 1289. We choose to take that

approach here.

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24 Opinion of the Court 24-11048

1151, 1157 (11th Cir. 2018)). In such a case, the request for leave to

amend “possesse[s] no legal effect.” Id. Because Pop’s request for

leave to amend his complaint was “imbedded within an opposition

memorandum,” it had “no legal effect.” Id. Pop’s request for leave

to amend was thus null, meaning that—at least at first glance—the

district court was free to dismiss Pop’s complaint with prejudice.

See Ounjian, 89 F.4th at 862.

We have, however, carved out a narrow exception to the

general rule that a plaintiff must properly request leave to amend

before such leave must be given. Namely, we have held that “[i]n

the special circumstance of non-merits dismissals on shotgun

pleading grounds, we have required district courts to sua sponte

allow a [plaintiff] one chance to remedy such deficiencies” even if

the plaintiff fails to request leave to amend. Vibe Micro, Inc. v.

Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) (citing First Horizon,

464 F.3d at 1280).

Pop argues that this exception applies because the district

court dismissed his complaint for failing to comply with Rule 9(b).

But we find that the repleading exception does not extend so far as

to apply here. 13

As noted above, the repleading exception comes from our

decision in First Horizon. See 464 F.3d 1273. There, the district

court dismissed the plaintiffs’ complaint for “fail[ing] to link their

13 We need not and do not decide whether the repleading exception could ever

apply to a dismissal under Rule 9(b).

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specific allegat[ions] to the causes of action pled in their

complaint.” Id. at 1278 (quotation omitted). As we described it,

“the complaint at issue in th[at] case [was] the proverbial shotgun

pleading.” Id. at 1279. “The central problem [was] that the factual

particularity of the first 175 paragraphs [was] not connected to the

otherwise generally pled claim in any meaningful way.” Id.

We held that even though the district court correctly

determined that the complaint was deficient, “the proper remedy

was to order repleading sua sponte”—not dismissal. Id. at 1280. In

coming to our conclusion, we observed: “It is not that we know

that plaintiffs cannot state a claim but rather that we do not know

whether they have. This is because plaintiffs have not connected

their facts to their claims in a manner sufficient to satisfy Rule 9(b).”

Id. That is, “the problem was not that [p]laintiffs did not allege

enough facts, or failed to recite magic words; the problem lay in

the fact that while [p]laintiffs introduced a great deal of factual

allegations, the amended complaint did not clearly link any of those

facts to its causes of action.” Id. (quotation omitted). We

concluded that “these observations sound more clearly in Rule

12(e)’s remedy of ordering repleading for a more definite statement

of the claim, rather than in Rule 12(b)(6)’s remedy of dismissal for

failure to state a claim.” Id.

Pop argues that under First Horizon, the district court should

have given him at least one chance to amend his complaint.

However, we find that this case is not like First Horizon. Unlike the

plaintiff in that case, Pop did not allege a “great deal of factual

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26 Opinion of the Court 24-11048

allegations” and simply fail to “link . . . those facts to [his] cause[]

of action.” Id. (quotation omitted). Instead, as discussed above,

Pop simply “did not allege enough facts”—a deficiency that the

plaintiff in First Horizon avoided. Id. In short, it is not that we “do

not know whether” Pop has stated a claim; rather, we know that

he has not. Id. First Horizon is thus inapposite here.

In sum, Pop failed to properly request leave to amend, and

First Horizon does not excuse Pop’s failure. The district court thus

did not err in dismissing his complaint with prejudice.

IV. Conclusion

For these reasons, we affirm the district court’s dismissal of

Pop’s complaint with prejudice.

AFFIRMED.