TAILLARD v. MERCEDES-BENZ USA, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-62173-CIV-DAMIAN/Valle

DANIEL FRANCOIS MAX TAILLARD,

Plaintiff,

v.

MERCEDES-BENZ USA, LLC, et al.,

Defendants.

________________________________________/

ORDER ON DEFENDANT MERCEDES-BENZ USA, LLC’S

MOTION TO DISMISS COMPLAINT [ECF NO. 23]

THIS CAUSE is before the Court upon Defendant Mercedes-Benz USA, LLC’s

(“MBUSA” or “Defendant”), Motion to Dismiss Complaint [ECF No. 23 (“Motion”)], filed

February 18, 2025. Plaintiff, Daniel Francois Max Taillard (“Plaintiff”), filed a Response

[ECF No. 27]. Defendant did not file a Reply.

THE COURT has reviewed the Motion and Response, the pertinent portions of the

record, and the relevant authorities, and is otherwise fully advised. For the reasons set forth

below, the Motion is due to be granted in part.

I. FACTUAL BACKGROUND1

As alleged in the Complaint, on January 19, 2023, Plaintiff purchased a used 2022

Mercedes-Benz EQS 580, which was manufactured by MBUSA, for a total purchase price of

just over $100,000. See Compl. ¶ 17 [ECF No. 1]; see also ECF No. 1-1 (“Sales Contract”).

1 At this stage, the Court accepts the well-pled allegations in the Complaint as true and

construes them in the light most favorable to Plaintiff. See Hishon v. King & Spalding, 467 U.S.

69, 73 (1984).

The Sales Contract provides that Plaintiff purchased the vehicle “as-is” from a car dealer in

Miramar, Florida. See Sales Contract at 2. As further alleged in the Complaint, at the time of

purchase, the vehicle was covered under an express written warranty in which the

manufacturer, MBUSA, undertook “to preserve and maintain the utility and performance of

the automobile and/or provide compensation in the event of a failure in utility or

performance.” Compl. ¶¶ 20, 23, 75; see ECF No. 1-2 (“Warranty”).

Plaintiff alleges that, since the time of purchase, he has had to take his vehicle for

repairs on multiple occasions to an authorized repair facility, Defendant Mercedes-Benz of

Fort Lauderdale (“MBFL” or the “Dealership”). Compl. ¶¶ 31–34. Plaintiff further alleges

that each time he took the vehicle for repairs, Defendants purported to service the vehicle

under the Warranty. Id. ¶ 35. According to the allegations in the Complaint, MBUSA’s

authorized repair facilities, including MBFL, serve as MBUSA’s agents with respect to repairs

performed on the vehicle under the Warranty. Id. ¶ 36. Plaintiff alleges that despite multiple

repair attempts, the vehicle has not been repaired properly and still has defects with the

electrical and battery systems. Id. ¶¶ 33, 37–47. Plaintiff also alleges that Defendants were on

notice that the vehicle contains defects as evidenced by a Technical Service Bulletin. Id. ¶ 48.

According to Plaintiff, MBFL, the dealership, continues to unlawfully withhold possession of

the vehicle and will not release it unless Plaintiff pays over $1,400 in storage fees, which

Plaintiff claims was never discussed or agreed to. Id. ¶¶ 52–64. And Plaintiff alleges that

MBFL’s unlawful possession of the vehicle has been confirmed and ratified by MBUSA. Id.

¶ 65.

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II. PROCEDURAL HISTORY

On November 17, 2024, Plaintiff filed a Complaint against MBUSA, MBFL, and Does

1 through 100. See generally Complaint. In the Complaint, Plaintiff asserts five causes of action:

(1) Breach of Express Warranty (against MBUSA); (2) Negligent Repair; (3)

Misrepresentation, (4) Violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.,

(against MBUSA); and (5) Conversion. See id. On January 8, 2025, this Court dismissed,

without prejudice, Defendants Does 1 through 100. See ECF No. 20, at 6–7.

On February 18, 2025, Defendant MBFL, the dealership, filed its Answer and

Affirmative Defenses to the Complaint. [ECF No. 22]. Defendant MBUSA chose to file the

Motion now before the Court, arguing that the Complaint should be dismissed for lack of

jurisdiction and for failure to state a claim. [ECF No. 23]. Plaintiff filed a Response to the

Motion on March 4, 2025. [ECF No. 27]. MBUSA did not file a Reply, and the time to do so

has passed.2 The Motion to Dismiss is ripe for adjudication.

This matter is presently set for trial during the Court’s two-week trial calendar

beginning on December 29, 2025, and for a Calendar Call on December 24, 2025. See ECF

No. 74. The record reflects that the parties are in the midst of several discovery disputes. See

ECF Nos. 44, 60, and 62.

2 By not filing a Reply that addresses Plaintiff’s arguments in the Response, MBUSA has

effectively conceded any counterargument to the specific points raised by Plaintiff. See GolTV,

Inc. v. Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 1311 n.7 (S.D. Fla. 2017) (Altonaga,

J.) (“When a party fails to respond to an argument or address a claim in a responsive brief,

such argument or claim can be deemed abandoned.”).

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III. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to

dismiss a complaint that does not satisfy the applicable pleading requirements for “failure to

state a claim upon which relief can be granted.” In considering a Rule 12(b)(6) motion to

dismiss, the court’s review is generally “limited to the four corners of the complaint.”

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v.

Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002)). The Court must review the complaint

in the light most favorable to the plaintiff, and it must generally accept the plaintiff’s well-

pleaded facts as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, pleadings

that “are no more than conclusions[ ] are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be supported by factual

allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Dismissal pursuant to a Rule 12(b)(6)

motion is warranted “only if it is clear that no relief could be granted under any set of facts

that could be proved consistent with the allegations of the complaint.” Shands Teaching Hosp.

& Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (internal quotation marks

omitted) (quoting Hishon, 467 U.S. at 73).

Generally, a complaint must satisfy Federal Rule of Civil Procedure 8(a)(2), which

requires that a pleading contain a “short and plain statement of the claim” showing the

pleader is entitled to relief. The complaint must “give the defendant fair notice of what the

claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (cleaned up). When the complaint includes claims of fraud, the pleading must satisfy

Federal Rule of Civil Procedure 9(b), which provides: “In alleging fraud or mistake, a party

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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.” The Rule

requires a plaintiff to set forth:

(1) precisely what statements were made in what documents or oral

representations or what omissions were made, and (2) the time and place of

each such statement and the person responsible for making (or, in the case of

omissions, not making) same, and (3) the content of such statements and the

manner in which they misled the plaintiff, and (4) what the defendants obtained

as a consequence of the fraud.

Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quoting Brooks v. Blue Cross

and Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)).

IV. ANALYSIS

As noted above, MBUSA argues that the Complaint should be dismissed for lack of

jurisdiction and for failure to state a claim. The Court first considers MBUSA’s jurisdictional

challenge.

A. Subject Matter Jurisdiction

“A district court can hear a case only if it has at least one of three types of subject

matter jurisdiction: (1) jurisdiction under specific statutory grant; (2) federal question

jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. §

1332(a).” Thermoset Corp. v. Bldg. Materials Corp. of Am., 849 F.3d 1313, 1317 (11th Cir. 2017)

(quoting PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016) (internal

quotations omitted)). With regard to federal question jurisdiction, the district courts have

“original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. § 1331; see Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535

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U.S. 826, 830 (2002) (“[F]ederal jurisdiction generally exists ‘only when a federal question is

presented on the face of the plaintiff’s properly pleaded complaint.’”) (quoting Caterpillar Inc.

v. Williams, 482 U.S. 386, 392 (1987)).

In the Complaint, Plaintiff alleges this Court has federal question jurisdiction because

his claims arise under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301, et

seq. Compl. ¶ 14. In the Motion, MBUSA argues that the Complaint should be dismissed

because Plaintiff has not alleged the requisite amount in controversy, which MBUSA claims

is a sum greater than $75,000, to invoke this Court’s jurisdiction. Mot. at 9. In the Response,

Plaintiff points out that the Complaint alleges that “[t]his Court has jurisdiction over the

subject matter of this action pursuant to 28 U.S. Code § 1331 and 15 U.S.C. § 2310(d) . . . .”

Resp. at 2 (citing Compl. ¶ 14). Plaintiff also points out that Section 2310(d)(3)(B) of the

MMWA requires that the amount in controversy exceed “the sum or value of $50,000

(exclusive of interest and costs)” and that the Complaint explicitly alleges that the amount in

controversy exceeds $50,000. Id. (citing Compl. ¶¶ 14, 70).

This Court agrees with Plaintiff. Plaintiff has asserted a claim under the MMWA,

which provides that “in order for a federal court to exercise jurisdiction of a claim under the

[Act], the amount in controversy must be at least $50,000, exclusive of interests and costs.”

Grubbs v. Pioneer Housing, Inc., 75 F. Supp. 2d 1323, 1326 (M.D. Ala. 1999). Therefore, this

Court has original jurisdiction over Count IV (violation of MMWA) pursuant to 28 U.S.C. §

1331. And, jurisdiction over the remaining state-law claims stems from the doctrine of

supplemental jurisdiction, which provides that “in any civil action of which the district courts

have original jurisdiction, [they] shall have supplemental jurisdiction over all other claims

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that are so related to claims in the action within such original jurisdiction that they form part

of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C.

§ 1367(a); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (providing that

the constitutional “case or controversy” standard confers supplemental jurisdiction over all

supplemental claims arising from a “common nucleus of operative fact” as the federal claims).

MBUSA’s Motion is therefore due to be denied insofar as it seeks dismissal based on

a lack of jurisdiction. This Court next turns to the parties’ arguments with respect to the

sufficiency of Plaintiff’s claims.

B. Count I – Breach of Express Warranty

In Count I of the Complaint, Plaintiff asserts a claim for breach of express warranty

against MBUSA under the Florida Uniform Commercial Code (“UCC”), Fla. Stat. § 627.313,

and the MMWA.3 In the Motion, MBUSA first argues that Count I, including Plaintiff’s

request for revocation of acceptance, should be dismissed for lack of privity because MBUSA,

as the manufacturer, is the warrantor of the vehicle, not the seller. See Mot. at 9–10, 17.

Elsewhere in the Motion, MBUSA argues that Count I should be dismissed because it

improperly commingles causes of action for breach of express warranty, breach of implied

warranty, and violation of the MMWA. See id. at 16. Notably, MBUSA does not dispute the

3 Although the allegations in Count I do not specify either the UCC or MMWA, Plaintiff

alleges elsewhere in the Complaint that he seeks damages for breach of warranty under the

UCC and MMWA. See Compl. ¶¶ 16, 26, 29, 30. One of the benefits of asserting a breach of

warranty claim under the MMWA is that the MMWA allows for the recovery of attorneys’

fees, while Florida’s UCC does not. See Ocana v. Ford Motor Co., 992 So. 2d 319, 324 n.1 (Fla.

3d DCA 2008); see also Najran Co. for General Contracting & Trading v. Fleetwood Enters., Inc., 659

F. Supp. 1081, 1099 (S.D. Ga. 1986).

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existence or validity of the express warranty alleged in Plaintiff’s Complaint or even whether

there exist any limitations under the subject warranty.

In response, Plaintiff states that revocation is not alleged as a cause of action but rather

as a potential remedy and, therefore, dismissal is improper on such grounds. Resp. at 3.

Plaintiff argues that he is nonetheless entitled to revocation for his breach of express warranty

claim under the UCC, the MMWA, and the common law. Id. at 6. Plaintiff also points out

that Count I is for breach of express warranty, not implied warranty and, therefore, privity is

not required to maintain his claim against MBUSA. See id. at 16.

The Court first address the parties’ arguments with respect to privity and then whether

Plaintiff has alleged a breach of express warranty claim under Florida law.4

1. Privity Requirement Under Florida Law

The Eleventh Circuit has observed that “Florida law reveals no clear rule about

whether privity is required in every Florida express warranty claim.” Godelia v. Doe, 881 F.3d

1309, 1321 (11th Cir. 2018); see also Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1342

(S.D. Fla. 2009) (Cohn, J.) (denying motion to dismiss express warranty claim for lack of

privity and noting that Florida law on the issue is “a moving target” on which “a degree of

uncertainty persists”); Baker v. Brunswick Corp., No. 2:17-cv-572, 2018 WL 1947433, at *3

(M.D. Fla. Apr. 25, 2018) (denying motion to dismiss express warranty claim for lack of

4 Florida law governs the express warranty claim here. The parties do not dispute that Plaintiff

is a citizen of Florida and that Florida law governs his state-law express warranty claim. See

Bahamas Sales Assoc., LLC v. Byers, 701 F.3d 1335, 1341–42 (11th Cir. 2012) (“If the parties

litigate the case under the assumption that a certain law applies, we will assume that that law

applies.”).

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privity and citing Florida cases in which the privity requirement was satisfied even though the

plaintiff did not purchase the product directly from the manufacturer).

Relevant here, several decisions from Florida’s appellate courts discussing warranty

claims under the MMWA have dismissed implied warranty claims against a manufacturer

for lack of privity while allowing express warranty claims to go forward. See Mesa v. BMW of

N. Am., 904 So. 2d 450, 458 (Fla. 3d DCA 2005) (holding plaintiff could pursue an express

warranty claim against warrantor BMW, but “cannot maintain suit against BMW for breach

of implied warranty as there was no privity of contract between [plaintiff] and BMW”);

Cerasani v. Am. Honda Motor Co., 916 So. 2d 843, 846 (Fla. 2d DCA 2005) (holding that

subsequent purchaser was entitled to protections of express written warranty but could not

assert claim for implied warranty because complaint did not allege privity); Rentas v.

DaimlerChrysler Corp., 936 So. 2d 747, 751 (Fla. 4th DCA 2006) (holding purchasers of a used

car could pursue a breach of express warranty claim against the manufacturer, who had issued

a written warranty, but could not pursue an implied warranty claim because there was no

privity of contract).

While the issue is somewhat unsettled, at this stage, this Court concludes that Plaintiff

may pursue his breach of express warranty claim against MBUSA, the manufacturer, despite

a lack of privity between the parties. See Fed. Ins. Co. v. Lazarra Yachts of N. Am., Inc., No. 8:09–

CV–607–T–27MAP, 2010 WL 1223126, at *6 (M.D. Fla. Mar. 25, 2010) (applying Florida

law and finding that a breach of express warranty claim could be brought under the MMWA

despite a lack of privity and stating that “[c]ourts have relaxed the privity requirement where

the express warranty was clearly intended to extend coverage to subsequent owners”).

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Therefore, to the extent MBUSA’s Motion seeks dismissal of Count I for lack of

privity, the Motion is due to be denied.

2. Breach Of Express Warranty Under Florida’s UCC

Under the Florida Uniform Commercial Code (“UCC”), “[a]ny affirmation of fact or

promise” from a seller to a buyer “creates an express warranty that the goods shall conform

to the affirmation or promise.” Fla. Stat. §§ 672.313(1)(a)–(b) (2024). To state a claim for

breach of express warranty under Florida’s UCC, a plaintiff must allege: “(1) the sale of goods;

(2) the express warranty; (3) breach of the warranty; (4) notice to seller of the breach; and (5)

the injuries sustained by the buyer as a result of the breach of the express warranty.” Jovine v.

Abbott Lab’ys, Inc., 795 F. Supp. 2d 1331, 1339–40 (S.D. Fla. 2011) (Cohn, J.) (citing Fla. Stat.

§ 672.313). Even if a warrantor breaches its express warranty, Florida law permits warrantors

to “limit the remedies available to the consumer” for the breach. Kelly v. Lee Cnty. RV Sales

Co., 819 F. App’x 713, 717 (11th Cir. 2020) (citing Fla. Stat. § 672.719(1)(a)).

Here, taking the allegations in the Complaint as true, Plaintiff alleges that (1) he

purchased the subject vehicle which was manufactured by MBUSA (see Compl. ¶¶ 17, 75); (2)

the vehicle was subject to an express written warranty provided by MBUSA (see id. ¶¶ 20, 76–

77); (3) MBUSA breached the express warranty by failing to repair certain defects in the

subject vehicle after a reasonable number of repair attempts (see id. ¶¶ 31–41, 44–46, 78–84);

(4) Plaintiff gave written notice of the defects to MBUSA (see id. ¶¶ 47, 66, 75); and (5) Plaintiff

has incurred damages as result of MBUSA’s breach of the express warranty (see id. ¶¶ 70, 90–

91). This Court finds that Plaintiff has sufficiently alleged a claim for breach of express

warranty under Florida’s UCC against MBUSA.

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3. Breach Of Express Warranty Under The MMWA

The MMWA, 15 U.S.C. § 2301, et seq., “does not provide an independent cause of

action for state law claims, only additional damages for breaches of warranty under state

law.” Vaughan v. Emerald Coast RV Center, LLC, No. 8:17-cv-639, 2019 WL 13227254, at *

(M.D. Fla. Mar. 7, 2019) (quoting Wilson v. MarineMax E., Inc., 303 F. Supp. 3d 1342, 1366

(N.D. Ga. 2018)). As such, the MMWA “borrow[s] state law causes of action for breach of

both written and implied warranties as a necessary condition for bringing forth an action

under the MMWA.” Hill v. Hoover Co., 899 F. Supp. 2d 1259, 1266 (N.D. Fla. 2012) (citing

Walsh v. Ford Motor Co., 807 F.2d 1000, 1015–16 (D.C. Cir. 1986)); see also Karhu v. Vital

Pharm., Inc., No. 13-60768-CIV, 2014 WL 815253, at *7 (S.D. Fla. Mar. 3, 2014) (Cohn, J.),

aff’d, 621 F. App’x 945 (11th Cir. 2015) (noting that “[t]he legislative history of the MMWA

suggests that, while the drafters of the statute intended to exclude express oral warranties

from its coverage, they did not intend to displace state-law requirements for claims pertaining

to express written warranties.”). Therefore, “claims under the Magnuson–Moss Act stand or

fall with [a plaintiff’s] express and implied warranty claims under state law.” Vazquez v. Gen.

Motors, LLC, No. 17-22209-CIV, 2018 WL 447644, at *4 (S.D. Fla. Jan. 16, 2018) (Gayles,

J.) (quoting Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008)); see also

Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1231 (11th Cir. 2016) (“The claims under

the Magnuson–Moss Act are identical to the other warranty claims because they are also

based on state law.”).

Because Plaintiff’s breach of express warranty claim under Florida’s UCC survives

dismissal, as discussed above, Plaintiff’s breach of express warranty claim under the MMWA

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survives, as well. See Hunter v. Marlow Yachts, Ltd. ., Inc., No. 09-cv-1772-T-TBM, 2011 WL

3794674, at *7 (M.D. Fla. Aug. 26, 2011) (stating that the MMWA claim was dependent

upon a sustainable state law claim for breach of warranty); Ocana v. Ford Motor Co., 992 So.

2d 319, 323 (Fla. 3d DCA 2008) (stating that whether there has been a breach of a limited

express warranty under the MMWA is governed by state law).

4. Revocation Of Acceptance

In Count I, Plaintiff seeks the remedy of revocation of acceptance. See Compl. ¶ 88.

While the Court must look to state law to determine privity for a claim involving the breach

of an implied warranty, Gill v. Blue Bird Body Company, 147 F. App’x 807, 810 (11th Cir. 2005),

the same is not true of a claim for breach of a written warranty. 15 U.S.C. § 2301(6); Yvon v.

Baja Marine Corp., 495 F. Supp. 2d 1179, 1184 n.4 (N.D. Fla. 2007) (“Defendants correctly

concede that transactional privity is not required to support an express warranty claim under

the [MMWA].”). As noted above, the Complaint does not seek relief for the breach of any

implied warranty. Nevertheless, the question remains as to whether privity is required to seek

the remedy of revocation of acceptance.

The MMWA is silent as to the amount and types of damages that may be awarded for

breach of an express warranty. See 15 U.S.C. § 2310(d)(1) (“[A] consumer . . . may bring suit

for damages and other legal and equitable relief.”). However, the MMWA also provides that

nothing in the MMWA “shall invalidate or restrict any right or remedy of any consumer

under State law . . . .” 15 U.S.C. § 2311(b)(1). As such, the Court turns to Florida law to

determine whether privity is required for revocation of acceptance in a claim for breach of an

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express warranty. Gill, 147 F. App’x at 810; see also Zelyony v. Porsche Cars N. Am., Inc., No.

08-20090-CIV, 2008 WL 1776975, at *2 (S.D. Fla. Apr. 16, 2008) (Moreno, J.).

Under Florida law, revocation is not a remedy available against a manufacturer absent

privity of contract. See Mesa v. BMW of N. Am., LLC, 904 So. 2d 450, 459 (Fla. 3d DCA 2005)

(holding that trial court properly granted summary judgment in favor of the manufacturer on

the revocation count since there was no privity between the buyer and the manufacturer). It

is also clear that revocation is not available for Plaintiff’s claims of breach of express warranty

under the Florida Statutes. See Fla. Stat. § 672.608 (contemplating revocation in transactions

between a “buyer” and “seller”).

Here, Plaintiff has not alleged any facts that would give rise to a plausible inference

that Plaintiff was in privity with Defendant MBUSA, such that his request for revocation of

acceptance may survive dismissal under the Twombly-Iqbal standard. See Boyer v. Land Rover

N. Am., Inc., No. 19-cv-22870, 2020 WL 128099, at *3 (S.D. Fla. Jan. 9, 2020) (Bloom, J.)

(dismissing plaintiff’s request for revocation of acceptance due to lack of privity between buyer

and manufacturer); Zelyony, 2008 WL 1776975, at *2 (“Privity is required for Plaintiff to

revoke acceptance of the vehicle under Florida law.”) (citing Mesa, 904 So. 2d at 459

(“Although revocation of acceptance can be a remedy for breach of express warranty under

the [Warranty Act], we have found no case applying Florida warranty law allowing a plaintiff

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to seek such a remedy against a manufacturer with whom the plaintiff is not in privity of

contract.”)).5

Therefore, although Plaintiff may sue MBUSA for breach of express warranty under

the MMWA, Plaintiff cannot seek revocation of acceptance as a legal remedy due to lack of

privity, as required under Florida law. The Motion to Dismiss is, therefore, due to be granted

in part as to Count I.

C. Count II – Negligent Repair

In Count II, Plaintiff asserts a claim for negligent repair against both MBUSA and

MBFL (the dealership). Plaintiff alleges, inter alia, that MBUSA “owed a duty of care to

Plaintiff to exercise reasonable care in performing the repairs” on the subject vehicle and that

“[a]s a direct and legal result of the automobile’s defect(s) and [MBUSA’s] failure to repair

same, Plaintiff was injured, the risk of which was at all times known and foreseeable to

[MBUSA].” Compl. ¶¶ 104–06.

MBUSA argues that Count II must be dismissed as barred by Florida’s independent

tort doctrine and that this claim is nothing more than an attempt to recast the breach of

warranty claim in Count I. See Mot. at 11–12. In response, Plaintiff asserts that Rule 8 allows

5 Contrary to Plaintiff’s contention, the appellate court in Rentas v. DaimlerChrysler Corp., 936

So. 2d 747, 749 (Fla. 4th DCA 2006), did not expressly hold that Florida law does not require

privity to seek revocation of acceptance against a manufacturer/warrantor in cases arising

from a breach of express warranty and violations of the MMWA. See Resp. at 4–5. Instead,

the Rentas Court held that the MMWA provides an independent federal cause of action for

breach of warranty and that privity between a buyer and manufacturer was not required for a

buyer to state a claim for breach of express warranty under the MMWA. See Rentas, 936 So.

2d at 751. Nowhere in the Rentas decision does the appellate court discuss, much less hold,

that privity is not required for a buyer to seek revocation of acceptance against a manufacturer

for a breach of express warranty claim.

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pleading in the alternative when the theories of recovery are inconsistent and that he has

alleged a claim that is separate and apart from the breach of warranty claim. Id. at 7–8.

Notably, MBUSA does not argue that the allegations in the Complaint fail to establish a

principal-agent relationship between MBUSA and the dealership, MBFL, which performed

the repairs on the subject vehicle, with respect to the negligent repair claim in Count II;

instead, MBUSA raises this argument as to Counts I and IV elsewhere in the Motion. See

Mot. at 16–17.

At this stage, as noted above, this Court must not only accept all of the Plaintiff’s

allegations as true but must also construe those allegations in the light most favorable to him.

See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Upon review of the allegations

in the Complaint, this Court finds that Plaintiff has sufficiently stated a claim for negligent

repair. See Compl. ¶¶ 94–108. Also, irrespective of whether the independent tort doctrine

applies, alternative pleadings are permissible at this stage of the proceedings. See Ternitz Enters.

Ltd. v. Learjet, Inc., No. 22-61048-CIV, 2022 WL 18464859, at *3 (S.D. Fla. Sept. 13, 2022)

(Dimitrouleas, J.) (denying motion to dismiss negligent maintenance claim without prejudice

to defendant raising independent tort doctrine argument at summary judgment or trial) (citing

Coast to Coast Supply Sols., LLC v. Bank of Am., Corp., No. 8:20-cv-606, 2020 WL 2494487, at *

2 (M.D. Fla. May 14, 2020)).

As noted above, MBUSA did not file a reply or otherwise respond to Plaintiff’s

arguments in the Response and, as such, MBUSA has effectively conceded any

counterargument to the specific points raised by Plaintiff. See GolTV, Inc. v. Fox Sports Latin

Am. Ltd., 277 F. Supp. 3d 1301, 1311 n.7 (S.D. Fla. 2017) (Altonaga, J.) (“When a party fails

15

to respond to an argument or address a claim in a responsive brief, such argument or claim

can be deemed abandoned.”).

With respect to MBUSA’s agency relationship argument raised elsewhere in its

Motion, whether Defendants MBUSA and MBFL had a principal-agent relationship requires

a fact-intensive inquiry more appropriately addressed at the summary judgment stage, not on

a motion to dismiss. See, e.g., Larach v. Standard Chartered Bank Int’l (Americas) Ltd., 724 F.

Supp. 2d 1228, 1239 (S.D. Fla. 2010) (Moreno, J.) (finding that fact-intensive inquiries, such

as whether plaintiffs have alleged facts establishing that a fiduciary or agency relationship

existed, are inappropriate for consideration at the motion to dismiss stage, and denying the

motion to dismiss with leave to renew at the summary judgment stage); In re Friedman’s, Inc.

Sec. Litig., 385 F. Supp. 2d 1345, 1369 (N.D. Ga. 2005) (noting fact-intensive inquiries are

generally not resolved on motions to dismiss and are instead more appropriate for motions

for summary judgment).

Accordingly, for these reasons, the Motion is due to be denied as to Count II.

D. Count III – Misrepresentation

In Count III of the Complaint, asserted against both MBUSA and MBFL, Plaintiff

alleges that the Defendants made the following misrepresentations: (1) that the subject vehicle

was safe to drive; (2) that the vehicle was covered under warranty and would be repaired

pursuant to the applicable warranties; (3) that the vehicle was serviced properly and that there

would be no further problems with the vehicle; and (4) that the vehicle did not qualify for

repurchase or replacement under applicable law. See Compl. ¶¶ 113–16.

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In the Motion, MBUSA argues that Plaintiff’s misrepresentation claim should be

dismissed because it is not pled with the specificity required for fraud-based claims, it is a

recast of the breach of warranty claim, and it is barred by the independent tort doctrine. See

generally Mot. at 18–22. As discussed above, Plaintiff may plead his claims in the alternative.

Moreover, the allegations in the misrepresentation claim stem from conduct that is separate

and distinct from Plaintiff’s breach of express warranty claim in Count I. Therefore, the

second and third bases for dismissal are rejected for the reasons discussed above.

Further, this Court finds that Plaintiff has sufficiently pled a claim for negligent

misrepresentation against Defendant MBUSA.6 To prevail on a negligent misrepresentation

claim, a plaintiff must plausibly allege:

(1) misrepresentation of a material fact; (2) that the representor made the

misrepresentation without knowledge as to its truth or falsity or under

circumstances in which he ought to have known of its falsity; (3) that the

representor intended that the misrepresentation induce another to act on it;

and (4) that injury resulted to the party acting in justifiable reliance on the

misrepresentation.

Serra-Cruz v. Carnival Corp., 400 F. Supp. 3d 1364, 1369 (S.D. Fla. 2019) (Ungaro, J.). As an

allegation of fraud, negligent misrepresentation is subject to a heightened pleading standard

under Federal Rule of Civil Procedure 9(b), which requires a plaintiff to establish the “who,

what, when, where, and how” of the fraud. Garfield v. NDC Health Corp., 466 F.3d 1255, 1262

(11th Cir. 2006). To satisfy Rule 9(b)’s “particularity” standard, a complaint must “identify

(1) the precise statements, documents or misrepresentations made; (2) the time and place of

and persons responsible for the statement; (3) the content and manner in which the statements

6 Although Count III in the Complaint is titled “Misrepresentation,” the allegations within

that count allege a claim for negligent misrepresentation. See Compl. ¶ 125.

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misled the plaintiff; and (4) what the Defendants gain[ed] by the alleged fraud.” Travelers Prop.

Cas. Co. of Am. v. Charlotte Pipe & Foundry Co., No. 6:11-CV-19-ORL-28GJK, 2012 WL

983783, at *6 (M.D. Fla. Mar. 22, 2012). Plaintiff has met these requirements. See Compl. ¶¶

113–35. See, e.g., Hicks v. Bombardier Recreational Prods. Inc., 684 F. Supp. 3d 1223, 1249 (S.D.

Fla. 2023) (Ruiz, J.) (finding plaintiff sufficiently stated claim for negligent

misrepresentation).

Initially, this Court notes that some of the allegations in Count III are not specific to

any particular Defendant but, instead, address the Defendants, MBUSA and MBFL,

collectively (see, e.g., Compl. ¶¶ 113–16), which is inadequate pleading. See W. Coast Roofing

& Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (“In a case

with multiple defendants, the complaint should contain specific allegations with respect to

each defendant; generalized allegations ‘lumping’ multiple defendants together are

insufficient.”). However, Plaintiff alleges an agency relationship between the Defendants and

“Rule 9(b) only requires that a plaintiff plead with specificity the ‘circumstances constituting

fraud.’” Commodity Futures Trading Comm’n v. Gibraltar Monetary Grp., Inc., No. 04-80132-CIV,

2004 WL 7334350, at *2 (S.D. Fla. July 22, 2004) (Dimitrouleas, J.) (quoting Guar. Residential

Lending, Inc. v. Int’l Mortgage Ctr., Inc., 305 F. Supp. 2d 846, 853 (7th Cir. 2004)). “Thus, an

agency relationship establishing vicarious liability for fraud generally does not have to be

pleaded with particularity.” Id. Rather, the agency relationship is generally governed by Rule

8(a) of the Federal Rules of Civil Procedure, which requires plaintiff to provide a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a);

Latham v. Residential Loan Ctrs. of Am., Inc., No. 03C7094, 2004 WL 1093315, at *6 (N.D. Ill.

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May 5, 2004) (stating “there must be ‘some factual predicate . . . to create the inference of

agency’”); see Stotler & Co. v. Commodity Futures Trading Comm’n, 855 F.2d 1288, 1292 (7th Cir.

1988) (finding that the Commission adequately pled vicarious liability when the complaint

tracked the statutory language and generally alleged that defendant was acting as an agent).

“However, when the plaintiff relies upon the same circumstances to establish both the alleged

fraud and the agency relationship of a defendant, the reasons for more particularized pleading

that animate Rule 9(b) apply with equal force to the issue of agency and the underlying fraud

claim.” Gibraltar Monetary Grp., 2004 WL 7334350, at *2 (quoting Lachmund v. ADM Investor

Servs., Inc., 191 F.3d 777, 783 (7th Cir. 1999)).

Here, Plaintiff relied upon entirely different factual allegations to plead

misrepresentation and agency. See Compl. ¶¶ 9, 11–12, 36, 112–33. Therefore, Plaintiff is not

required to plead with specificity that MBFL was an agent of MBUSA for purposes of the

negligent misrepresentation claim.

Accordingly, at this stage, this Court finds that Plaintiff has sufficiently pled a claim

for negligent misrepresentation against MBUSA to survive dismissal and, therefore, the

Motion is due to be denied as to Count III.

E. Count IV – Violation of MMWA

In Count IV, Plaintiff asserts a claim for violation of the MMWA, 15 U.S.C. § 2301 et

seq. “The Act does not provide an independent cause of action for state law claims, only

additional damages for breaches of warranty under state law.” Fedrick v. Mercedes-Benz USA,

LLC, 366 F. Supp. 2d 1190, 1200 n.14 (N.D. Ga. 2005) (citations omitted). Here, Plaintiff’s

MMWA claim is premised on the express written warranty. See Compl. ¶¶ 140–48. Because

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this Court has determined that it cannot dismiss Plaintiff’s state law claim for breach of

express warranty, this Court likewise declines to dismiss Plaintiff’s MMWA claim. See

Vazquez v. Gen. Motors, LLC, No. 17-22209-CIV, 2018 WL 447644, at *4 (S.D. Fla. Jan. 16,

2018) (Gayles, J.). Accordingly, the Motion is denied as to Count IV.

F. Count V – Conversion

In Count V, Plaintiff asserts a conversion claim against both MBUSA and MBFLA.

Plaintiff alleges that MBFL, the dealership, took wrongful possession of the subject vehicle,

that MBFL served as MBUSA’s actual agent during the parties’ dealings, and that MBUSA

confirmed and ratified MBFL’s wrongful actions, thus rendering MBUSA liable for MBFL’s

actions. See Compl. ¶¶ 156–60.

Conversion is “the exercise of wrongful dominion and control over property to the

detriment of the rights of its actual owner.” Batista v. Rodriguez, 388 So. 3d 1098, 1101 (Fla.

3d DCA 2024). “Where a person having a right to possession of property makes demand for

its return and the property is not relinquished, a conversion has occurred.” World Cellphones

Distribs. Corp. v. De Surinaamsche Bank, N.V., 357 So. 3d 225, 229 (Fla. 3d DCA 2023) (citations

omitted).

Here, accepting the allegations in the Complaint as true, Plaintiff alleges that (1)

Plaintiff is the rightful owner of the vehicle; (2) MBFL exercised wrongful dominion or

control of the vehicle; (3) MBFL served as MBUSA’s lawful and actual agent7; and (4) MBFL

7 As discussed above, the issue of agency is more properly addressed at the summary

judgment stage, not on a motion to dismiss. Therefore, the Court accepts Plaintiff’s allegation

regarding agency as true at this stage.

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refused to deliver or return possession of the vehicle unless Plaintiff paid the storage fees

totaling over $1,400, and accruing at a rate of $75 per day. Compl. ¶¶ 156–60.

While Plaintiff did not specifically plead that a demand was made to the Defendants

for return of the vehicle, accepting Plaintiff’s allegations as true, any such demand would be

futile considering MBFL refused to deliver possession of the vehicle to Plaintiff unless Plaintiff

pays the outstanding storage fees. See Compl. ¶ 63. See Ginsberg v. Lennar Fla. Holdings, Inc.,

645 So. 2d 490, 500 (Fla. 3d DCA 1994) (“[A] demand and refusal are unnecessary [where]

it would be futile and the act preventing a return results in a depriving of possession and, thus

equates to a conversion.” (quoting Shelby Mutual Ins. Co. of Shelby, Ohio v. Crain Press, Inc., 481

So. 2d 501, 503 (Fla. 2d DCA 1985))). Thus, Plaintiff has stated a claim for conversion, and

the Motion is due to be denied as to Count V.

V. CONCLUSION

Accordingly, for the reasons discussed above, it is hereby

ORDERED AND ADJUDGED as follows:

1. Defendant Mercedes-Benz USA, LLC’s Motion to Dismiss [ECF No. 23] is

GRANTED IN PART.

2. Plaintiff’s request for revocation of acceptance as a remedy for his breach of express

warranty claim under Count I is hereby STRICKEN from the Complaint due to

lack of privity of contract.

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3. Defendant Mercedes-Benz USA, LLC shall file an answer to the Complaint no

later than fourteen (14) days from the date of this Order.

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 3rd day of

September, 2025.

MELISSA fue

UNITED STATES DISTRICT JUDGE

cc: Counsel of record

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