Dawson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES W. DAWSON, JR., and

EDMOND C. HILL, JR., individually and

on behalf of all others similarly situated,

Plaintiffs,

v. Case No. 8:24-cv-2412-KKM-LSG

GENERAC POWER SYSTEMS, INC.,

and GENERAC HOLDINGS, INC.,

Defendants.

___________________________________

ORDER

Plaintiffs bring this putative class action against Generac Power

Systems, Inc., and Generac Holdings, Inc., alleging that defendants marketed

and sold them defective generators. Am. Compl. (Doc. 27). Seeking to certify a

nationwide class and subclasses in Florida, Georgia, Louisiana, Kansas, North

Carolina, and Texas, the plaintiffs’ complaint asserts claims for breach of

warranty, negligence, and fraud, as well as violations of state consumer

protection laws. Id. ¶¶ 276, 287–468. The defendants move to dismiss for lack

of personal jurisdiction, lack of standing, and for failure to state a claim. Mot.

to Dismiss (MTD) (Doc. 34). The plaintiffs oppose. Resp. (Doc. 35). For the

reasons explained below, I grant in part and deny in part the defendants’

motion to dismiss.

I. BACKGROUND

Defendant Generac Power is a Wisconsin-based corporation that designs,

manufactures, markets, and sells commercial and residential generators and

power supply products through authorized dealers and retailers throughout

the United States. Am. Compl. ¶¶ 2, 11, 68, 71. Generac Power is a wholly

owned subsidiary of Generac Holdings, a Delaware corporation with

headquarters in Wisconsin that relies on its subsidiaries as a “principal source

of cash to repay indebtedness [and] fund operations.” Id. ¶¶ 68, 70–71 (internal

citation omitted).

Generac’s generators come with a limited warranty providing that the

“Generator and/or transfer switch system will be free from defects in material

and workmanship” for up to five years or 2,000 hours, and further

guaranteeing that “Generac will, at its discretion, repair or replace any part(s)

which, upon evaluation, inspection and testing by Generac or an Independent

Authorized Service Dealer, is found to be defective.” Limited Warranty (Doc.

27-1). The Limited Warranty “supersedes all other warranties, expressed or

implied” and explains that “Generac makes no other warranties as to the

merchantability or fitness for a particular purpose.” Id. (boldface omitted).

Named plaintiffs are residents of Florida, Georgia, Kansas, Louisiana,

North Carolina, and Texas, who purchased 22kW and 24kW Generac

generators between 2021 and 2024. See, e.g., Am. Compl. ¶¶ 18–67, 88, 92, 117,

177. The plaintiffs claim to have “relied on . . . information regarding the

quality, reliability, and functionality of the Class Generators conveyed in

Generac’s [and its authorized retailer’s] marketing materials and

advertisements in deciding to purchase their standby generators.” Id. ¶ 227.

The plaintiffs allege, though, that “[u]nbeknownst to consumers at the time of

purchase and/or installation, the Class Generators contain a latent defect

which accelerates the wear and deterioration of critical parts associated with

the alternator, including the slip rings and carbon brushes, and creates

increased friction and resistance between components.” Id. ¶ 4. That defect

causes “poor contact between the carbon brushes and slip rings, further

damage, and premature wear or failure of the surrounding components,” and

“disrupts the continuous transfer of electrical power and signals between a

generator’s stationary and rotating parts, which in turn causes the Class

Generators to malfunction and/or stop powering consumers’ homes during an

outage.” Id. ¶¶ 4–5. Each of the named plaintiffs claims that his or her Generac

generator suffers from a defect which caused it to fail during use and now

renders it “no longer reliable during storms or power outages.” See id. ¶ 81.

The plaintiffs also allege that Generac Power and Generac Holdings

“knew or should have known of information pertaining to the Defect,” id. ¶ 7,

based on “(a) consumer complaints posted on the internet; (b) warranty and

post-warranty claims; (c) consumer complaints made directly to Generac

and/or its authorized retailers, or certified technicians; and (d) authorized

retailer and installer repair records and replacement parts sales data,” id.

¶ 238. And, according to the plaintiffs, Generac Power and Generac Holdings

“continue[] to falsely represent through written representations and

warranties that the Class Generators are reliable backup power sources that

are free from Defect, of merchantable quality, and will perform dependably for

years.” Id. ¶ 252.

The plaintiffs filed this putative class action based on the alleged defects

in Generac’s generators and, under the Class Action Fairness Act (CAFA), 28

U.S.C. § 1332(d), seek to certify both a nationwide class and individual state

subclasses “of owners and purchasers of standby generators models ranging

from 18Kw to 48Kw in Generac’s product series (‘Class Members’), which are

supposed to provide consumers with automatic backup power to their homes,

that were manufactured, designed, marketed, warranted, and/or sold to

consumers from 2020 to 2024 (the ‘Class Generators’).” Id. ¶¶ 1, 76. The named

plaintiffs, on behalf of themselves and unnamed nationwide class members,

assert claims for breach of express warranty (Count I), breach of implied

warranty (Count II), negligent misrepresentation (Count III), fraudulent

concealment or misrepresentation (Count IV), and negligence (Count V). Id.

¶¶ 287–356. The named plaintiffs also bring—on behalf of the relevant state

subclasses—claims for violations of the Florida Deceptive and Unfair Trade

Practices Act (FDUTPA) (Count VI), the Kansas Consumer Protection Act

(Count VII), the Louisiana Consumer Protection Act (Count VIII), and the

North Carolina Unfair and Deceptive Practices Act (Count IX). Id. ¶¶ 357–468.

The defendants move to dismiss under Federal Rules of Civil Procedure

12(b)(1), (2), and (6).

II. LEGAL STANDARDS

A claim for relief must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” FED. R. CIV. P. 8. This standard

“does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ ” Id. (quoting

Twombly, 550 U.S. at 555). Nor do “naked assertion[s]” devoid of “further

factual enhancement” suffice. Twombly, 550 U.S. at 557.

A. Federal Rule of Civil Procedure 12(b)(1)

A defendant may move to dismiss a complaint for lack of standing. FED.

R. CIV. P. 12(b)(1). To establish standing, a plaintiff must show “(1) an injury

in fact; (2) a causal connection between the injury and the alleged misconduct;

and (3) a likelihood that the injury will be redressed by a favorable decision.”

L.M.P. on behalf of E.P. v. Sch. Bd. of Broward Cty., 879 F.3d 1274, 1281 (11th

Cir. 2018) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). At

the pleading stage, a plaintiff must clearly allege facts demonstrating each

element for each claim. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

Standing requirements apply no less in class actions, where “named plaintiffs

who represent a class must allege and show that they personally have been

injured, not that injury has been suffered by other, unidentified members of

the class to which they belong.” Id. at n.6 (citation modified).

B. Federal Rule of Civil Procedure 12(b)(2)

A defendant may move to dismiss a claim for relief under Federal Rule

of Civil Procedure 12(b)(2) for lack of personal jurisdiction. A plaintiff

attempting to exert personal jurisdiction over a nonresident defendant “bears

the initial burden of alleging in the complaint sufficient facts to make out a

prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260,

1274 (11th Cir. 2009). If a defendant submits an affidavit disputing the

plaintiff’s allegations, “the burden shifts back to the plaintiff to produce

evidence supporting personal jurisdiction, unless the defendant’s affidavits

contain only conclusory assertions that the defendant is not subject to

jurisdiction.” Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino,

447 F.3d 1357, 1360 (11th Cir. 2006). Where factual conflicts exist, “the district

court must construe all reasonable inferences in favor of the plaintiff.” Madara

v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

C. Federal Rule of Civil Procedure 12(b)(6)

“To survive a motion to dismiss” for failure to state a claim, a plaintiff

must plead sufficient facts to state a claim that is “plausible on its face.” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on its

face when a “plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Id. A court must accept the complaint’s factual allegations as true and construe

them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d

1282, 1284 (11th Cir. 2008). Courts should limit their “consideration to the

well-pleaded factual allegations, documents central to or referenced in the

complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc.,

358 F.3d 840, 845 (11th Cir. 2004), abrogated on other grounds by Twombly,

550 U.S. 544.

III. ANALYSIS

Defendants Generac Power and Generac Holdings move to dismiss under

Federal Rules of Civil Procedure 12(b)(1), (2), and (6). I address each in turn.

A. Article III Standing

Moving under Rule 12(b)(1), the Generac defendants contend that the

plaintiffs fail to allege a cognizable injury and thus lack standing. MTD at 21–

22. I disagree, at least insofar as plaintiffs allege economic harms related to

generators that they purchased.

Only the injury prong of the standing inquiry is seriously in dispute here.

An injury must be concrete and particularized to satisfy Article III’s

requirements. Spokeo, 578 U.S. at 339. “Certainly, an economic injury qualifies

as a concrete injury.” Debernardis v. IQ Formulations, LLC, 942 F.3d 1076,

1084 (11th Cir. 2019) (citing Clinton v. New York, 524 U.S. 417, 432–33 (1998);

MSPA Claims 1, LLC v. Tenet Fla., Inc., 918 F.3d 1312, 1318 (11th Cir. 2019)

(explaining that an economic injury is the “epitome” of a concrete injury)). For

example, the Eleventh Circuit has held that “[a] person experiences an

economic injury when, as a result of a deceptive act or an unfair practice, he is

deprived of the benefit of his bargain” by “acquir[ing] a worthless product.”

Debernardis, 942 F.3d at 1084 (11th Cir. 2019); see Carriuolo v. Gen. Motors

Co., 823 F.3d 977, 986–87 (11th Cir. 2016) (holding that class members

bringing FDUTPA claims were denied the benefit of their bargain when they

purchased vehicles represented as having three perfect safety ratings but had

no safety ratings); see also Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 132 (2014) (“A consumer who is hoodwinked into purchasing

a disappointing product may well have an injury-in-fact cognizable under

Article III.”). “The benefit-of-the-bargain theory thus recognizes that a

purchaser who acquires a product with significant defects may effectively

receive nothing of value.” Debernardis, 942 F.3d at 1084.

Here, the plaintiffs fairly allege two cognizable economic injuries flowing

from the purchase of defective generators. First, because of Generac Power’s

purported concealment of a known defect, the plaintiffs say they “overpaid” for

generators that do not work as advertised and fail during use. Am. Compl.

¶ 16; see id. ¶ 15 (describing Generac’s generators as “virtually useless.”). Each

of the named Florida plaintiffs level this brand of factual allegation. Id. ¶¶ 81–

229. In other words, the plaintiffs were “deprived of the benefit of their

bargain” in purchasing defective products. Id. ¶ 17. That alone suffices for the

plaintiffs’ standing to pursue products liability claims. See, e.g., Debernardis,

942 F.3d at 1084. Second, the plaintiffs also collectively represent that they

“have paid hundreds of dollars for repairs that do not provide a permanent or

reliable solution to the Defect.” Id. ¶ 16. That allegation, too, provides enough

to satisfy the concrete injury requirement.

Generac makes three arguments in response, some of which drift into

the merits or otherwise would not cause the plaintiffs to flunk constitutional

standing requirements. Generac’s final argument, however, restricts the

plaintiffs’ standing to pursue claims related only to a subset of the “Class

Generators.”

First, Generac avers that the plaintiffs “do not plausibly allege a

cognizable injury by general reference to out-of-pocket expenses or other

consequential damages” because “no named Plaintiff alleges that they paid

out-of-pocket expenses resulting from the damage or malfunction of their

generator.” MTD at 22. And even if they did, Generac says that the Limited

Warranty prohibits consequential damages. See MTD at 23 (citing

§ 672.719(1)(a), Fla. Stat.). While I mostly agree with Generac’s reading of the

allegations, the amended complaint’s failure to plead out-of-pocket repair

expenses on a plaintiff-by-plaintiff basis is not fatal in the light of the

allegation, imputed to all plaintiffs whose claims fall within the Court’s

jurisdiction,1 that “the Florida Plaintiffs and Florida Subclass [paid] out of

pocket for repair and/or maintenance once the defects were discovered.” Am.

Compl. ¶ 383. And individual plaintiffs claim that attempted repairs did not

fix their problems. See, e.g., id. ¶¶ 87, 150. Additionally, the Limited

1 As explained below, infra, at Section III.B, certain plaintiffs’ claims fail on other

jurisdictional grounds.

Warranty’s limitation on consequential damages goes to the “separate

question” of “[w]hether recovery for such a claim is permitted under governing

law.” Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007). At this stage,

where “a plaintiff seeks damages,” I only “consider whether an alleged past

harm occurred to satisfy the injury requirement.” WBY, Inc. v. City of

Chamblee, 155 F.4th 1242, 1259 (11th Cir. 2025). Therefore, “it is sufficient for

standing purposes that the plaintiffs seek recovery for an economic harm that

they allege they have suffered” independently of whether the contract might

eventually preclude recovery. Cole, 484 F.3d at 723.

Generac commits a similar error on the benefit-of-the-bargain theory of

standing. There, Generac says that the plaintiffs only bargained “for a

generator with a Limited Warranty, and not a generator that would never be

damaged, never malfunction, and never need a repair.” MTD at 24. But again,

the plaintiffs allege that repairs have been ineffective. And Generac’s

arguments go squarely to the warranty’s terms and the types of damages

permitted, and thus the merits of the plaintiffs’ breach of warranty claims. So

long as the plaintiffs allege a past economic injury, I “must . . . assume that on

the merits plaintiffs would be successful in their claims [for damages].”

Culverhouse v. Paulson & Co., 813 F.3d 991, 994 (11th Cir. 2016) (citation

omitted); see also Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1299

(S.D. Fla. 2017) (explaining that dismissal at the pleading stage is premature

so long as benefit of the bargain damages are “theoretically available”).

Finally, Generac says that the “plaintiffs do not have standing to bring

claims for products that they did not purchase.” MTD at 25–26. On this point,

I agree. “[J]ust as a plaintiff cannot pursue an individual claim unless he

proves standing, a plaintiff cannot represent a class unless he has standing to

raise the claims of the class he seeks to represent.” Wooden v. Bd. of Regents of

Univ. Sys. of Ga., 247 F.3d 1262, 1288 (11th Cir. 2001). Because standing is

not dispensed in gross—even for class action plaintiffs—I agree with other

district courts in this Circuit that have concluded that a named plaintiff “lacks

standing as to any product he did not purchase.” Blobner v. R.T.G Furniture

Corp., No. 8:17-CV-1676-T-30SPF, 2019 WL 3808130, at *4 (M.D. Fla. July 24,

2019); see, e.g., Toback v. GNC Holdings, Inc., No. 13–80526–CIV, 2013 WL

5206103, at *5 (S.D. Fla. Sept. 13, 2013) (“Article III standing of a named

plaintiff must be established on a claim-by-claim basis within the Eleventh

Circuit, and deferring the standing determination to the class[-]certification

stage will yield no different result.”). And in any event, the plaintiffs do not

respond to this point and have thus abandoned any contrary argument. See

Garrett-Alfred v. Facebook, Inc., 540 F. Supp. 3d 1129, 1137 (M.D. Fla. 2021);

U.S. ex rel. Osheroff v. Tenet Healthcare Corp., 09-22253-CIV, 2012 WL

2871264, at *9 (S.D. Fla. July 12, 2012) (“The failure to defend a claim in

responding to a motion to dismiss results in the abandonment of that claim.”

(citing Edmondson v. Bd. of Trs. Of Univ. of Ala., 258 F. App’x 250, 253 (11th

Cir. 2007)).

I therefore conclude that plaintiffs have sufficiently alleged an economic

injury and have standing to pursue their claims related exclusively to the

generators that they purchased, namely Generac’s 22kW and 24kW standby

generator models. See Ex. A, Crespo Decl. (Doc. 34-3) (cataloging generators

purchased by named plaintiffs, limited to 22kW and 24kW “Generac standby

generator[s]”).

B. Personal Jurisdiction

The defendants assert that jurisdictional flaws require dismissal of all

claims brought against Generac Holdings, a nonresident defendant, and all

claims brought by nonresident plaintiffs. See MTD at 16–21; see also FED. R.

CIV. P. 12(b)(2). First, the defendants argue that all claims against Generac

Holdings must be dismissed because, as a nonresident entity, Generac

Holdings “is not subject to personal jurisdiction in Florida.” MTD at 16. Second,

defendants urge that all claims brought by non-Florida plaintiffs must be

dismissed because they “cannot sue non-resident defendants . . . in a foreign

forum without an ‘adequate link between the [foreign forum] and the

nonresidents’ claims.’ ” Id. at 19 (quoting Bristol-Myers Squibb Co. v. Superior

Ct. of California, 582 U.S. 255, 264 (2017)). I agree on both points.

1. This Court lacks specific personal jurisdiction over

nonresident Generac Holdings

The defendants first contend that this Court lacks personal jurisdiction

over Generac Holdings, a Delaware corporation headquartered in Wisconsin

with insufficient Florida contacts. MTD at 16. The plaintiffs resist that

conclusion, asserting that Generac Holdings “conduct[s] substantial and

systemic business activities in Florida through the sale and service of

generators” in deliberate collaboration with its subsidiary, Generac Power.

Resp. at 9; see, e.g., Am. Compl. ¶ 2 (alleging that Generac Holdings and

Generac Power “collectively design, manufacture, and sell” generators

(emphasis added)). Because the plaintiffs’ accusations fail to overcome the

defendants’ contrary declaration, I dismiss the claims against Generac

Holdings for lack of personal jurisdiction.

Federal courts use a two-step inquiry to determine whether personal

jurisdiction exists over a nonresident defendant. See Horizon Aggressive

Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005).

Looking to state law, the court must first “determine whether the exercise of

jurisdiction is appropriate under the forum state’s long-arm statute.” Mut.

Serv. Ins. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). Second, a

court must ensure that exercising jurisdiction comports with the Due Process

Clause of the Fourteenth Amendment. See Horizon Aggressive Growth, 421

F.3d at 1166. Under the Due Process Clause, a court may exercise specific

jurisdiction over a nonresident entity based on its “commission of some single

or occasional acts” in the forum so long as the claim itself “aris[es] out of or

relate[s] to [those] contacts with the forum.” Daimler AG v. Bauman, 571 U.S.

117, 127 (2014) (quoting International Shoe Co. v. Washington, 326 U.S. 310,

317 (1945), and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408, 414, n.8 (1984)); see also Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 927 (2011) (“Flow of a manufacturer’s products into the

forum . . . may bolster an affiliation germane to specific jurisdiction.”). For

specific jurisdiction to attach, a defendant must “ ‘purposefully avail[]’ itself of

the privilege of conducting activities—that is, purposefully establish[]

contacts—in the forum state and there must be a sufficient nexus between

those contacts and the litigation.” Diamond Crystal Brands, Inc. v. Food

Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010).

Starting with step one, “[u]nder Florida’s long-arm statute, a defendant

is subject to either specific jurisdiction, which applies if the claim arises out of

or is related to defendant’s contacts with Florida, or general jurisdiction, which

applies regardless of whether the claims involve the defendant’s activities in

Florida if the defendant engages in substantial and not isolated activity in

Florida.” Garrett-Alfred, 540 F. Supp. 3d at 1136; see SkyHop Techs., Inc. v.

Narra, 58 F.4th 1211, 1223 (11th Cir. 2023) (explaining that Florida’s long-

arm statute reaches “anyone who personally or through an agent engages in

any of nine enumerated acts, as long as the cause of action arises from that

act.” (quoting § 48.193(1)(a)). Accordingly, a court may exercise jurisdiction

over a nonresident defendant that “[o]perat[es], conduct[s], engag[es] in, or

carr[ies] on a business or business venture” or commits a tortious act in

Florida. See Resp. at 9–10 (citing § 48.193(1)(a), (b), Fla. Stat.).

On the other hand, a foreign parent corporation is not subject to

jurisdiction in Florida merely because its subsidiary does business there. Meier

ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1272 (11th Cir. 2002);

Reynolds Am., Inc. v. Gero, 56 So.3d 117, 120–121 (Fla. 3d DCA 2011) (“It is,

of course, well settled that a parent corporation and its wholly-owned

subsidiary are separate and distinct legal entities.” (internal quotations and

citations omitted)). “Where the subsidiary’s presence in the state is primarily

for the purpose of carrying on its own business and the subsidiary has

preserved some semblance of independence from the parent, jurisdiction over

the parent may not be acquired on the basis of the local activities of the

subsidiary.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir.

2000) (internal quotation marks omitted). In other words, a subsidiary’s

contacts only justify jurisdiction over the parent when the subsidiary is a mere

“alter ego,” see Daimler, 571 U.S. at 134–35, or when “a parent corporation

exerts such extensive operational control over a subsidiary that the subsidiary

is no more than an agent existing to serve only the parent’s needs,” Gadea v.

Star Cruises, Ltd., 949 So.2d 1143, 1146 (Fla. 3d DCA 2007); see also Enic, PLC

v. F.F. South & Co., 870 So.2d 888, 891 (Fla. 5th DCA 2004) (“The amount of

control exercised by the parent must be high and very significant.”).

Here, although the plaintiffs’ complaint alleges sufficient facts to make

a prima facie case for specific jurisdiction, the plaintiffs’ jurisdictional evidence

fails to overcome Generac Holdings’ sworn statements that it neither conducts

operations in Florida nor controls Generac Power’s activities in Florida. To

start, the Amended Complaint alleges that Generac Power and Generac

Holdings “collectively design, manufacture, and sell a wide range of portable,

residential, commercial and industrial generators, including the Class

Generators, and other power supply products.” Am. Compl. ¶ 2 (emphasis

added). As the “parent company,” the plaintiffs allege that Generac Holdings

“relies on its subsidiaries, including Generac Power, as a ‘principal source of

cash to repay indebtedness [and] fund operations.’ ” Id. ¶ 70 (quoting 2023

Form 10-K (Doc. 35-1) at 31). More, the plaintiffs allege that Generac Holdings’

“financial disclosures filed with the SEC demonstrate a strong unity of

financial interest between Generac Holdings and Generac Power,” as the

entities are referred to as “ ‘the Company’ in consolidated balance sheets.” Id.

¶¶ 70–72. So, in the plaintiffs’ view, “[a] foreign parent corporation such as

Generac Holdings can be subject to the jurisdiction of a forum state that its

subsidiary is doing business in,” provided the parent company’s “separate

corporate status is formal only and without any semblance of individual

identity.” Resp. at 9 (quoting Meier, 288 F.3d at 1272).

In response, Generac Holdings offers a declaration from its Chief

Financial Officer, York A. Ragen, claiming that “despite [Generac Holdings’]

position as the indirect parent of [Generac Power], [it] does not exert

operational control over the internal day-to-day affairs of [Generac Power].”

Ragen Decl. (Doc. 34-1) ¶ 8. According to Ragen, Generac Holdings “maintains

separate books, records, and accounts” from Generac Power, does not “design,”

“manufacture,” “market or advertise,” “sell,” nor “warrant” “any products,

including generators, anywhere in the United States, including Florida.” Id.

¶¶ 12–17. Likewise, Generac Holdings does not own property, employ

individuals, or “conduct any business activities in Florida.” Id. ¶¶ 18–19, 22.

Absent contrary evidence, the defendants’ affidavit establishes that Generac

Holdings is not “[o]perating, conducting, engaging in, or carrying on a business

or business venture in [Florida]” either directly or “through an agent.” §

48.193(1)(a)(1), Fla. Stat. The burden thus returns to the plaintiffs “to produce

evidence supporting personal jurisdiction.” Stubbs, 447 F.3d at 1360. The

plaintiffs fail to carry that burden, even construing the evidence in their favor.

Instead of producing new evidence, the plaintiffs double down on

statements in Generac Holdings’ financial disclosures, including its recent

Forms 10-K, 8-K, 10-Q, and Schedule 13-D. See 2023 Forms (Docs. 35-1, 35-2).

For example, the plaintiffs repeat that in its Forms 10-Q and 8-K, Generac

Holdings refers to itself and its subsidiaries as “the Company,” represents that

“[t]he Company provides power generation equipment, energy storage systems

. . . serving the residential, light commercial, and industrial markets,” and

“offers standard warranty coverage” on its products. (Doc. 35-1) at 54, 58.

Likewise, Generac Holdings acknowledges that product liability claims and

warranty costs may affect the Company’s “actual financial results.” Id. at 4.

Despite the plaintiffs’ contention that the statements suggest “a strong unity

of financial interest” between parent and subsidiary, Resp. at 12, the

defendants’ representations made for reporting purposes are insufficient to

confer personal jurisdiction over Generac Holdings.

Notably, neither federal nor Florida “courts . . . consider statements in

websites, annual reports, and press releases, reliable evidence that the parent

exercises ‘operational control’ necessary to confer personal jurisdiction.”

Heidbrink v. ThinkDirect Mktg. Grp., Inc., No. 8:14-CV-1232-T-30AEP, 2014

WL 3585698, at *3 (M.D. Fla. July 21, 2014); see also Dev. Corp. of Palm Beach

v. WBC Const., L.L.C., 925 So. 2d 1156, 1162–63 (Fla. 4th DCA 2006). That’s

because such statements are not ordinarily made “to state the legal

relationship between the parties but to state in terms investors might

understand the complicated arrangements between the parent, subsidiaries,

and sub-subsidiaries.” Dev. Corp. of Palm Beach, 925 So. 2d at 1163; see also

Reply (Doc. 38) at 6 n.4 (citing Generac Holdings’ 2025 Form 10-K, which states

“[f]or ease of reference in explaining the general activities of its related entities

in this report, [Generac Holdings] includes here the operating activities of its

wholly owned subsidiaries[,] including Generac Power.]”). Additionally, that

Generac Power’s profits or warranty claims are distributed to, and affect,

Generac Holdings’ financial statements, “is part and parcel of the

parent/subsidiary relationship and is inadequate to confer personal

jurisdiction.” Unitedhealthcare of Fla., Inc. v. Am. Renal Assocs. Holdings, Inc.,

No. 16-81180-CIV, 2017 WL 1832436, at *5 (S.D. Fla. May 8, 2017); see Est. of

Miller ex rel Miller v. Toyota Motor Corp., No. 6:07-cv-1358-Orl-19DAB, 2008

WL 516725, at *5–6 (M.D. Fla. Feb. 22, 2008) (Florida revenue that passed

through subsidiaries is insufficient to establish personal jurisdiction); see also

Extendicare, Inc. v. Est. of McGillien, 957 So. 2d 58, 64–65 (Fla. 5th DCA 2007)

(merely collecting revenue from a subsidiary is insufficient to establish

personal jurisdiction over the parent).

Aside from these statements, the plaintiffs do not show the indicia of an

agency relationship necessary for jurisdiction, i.e., that Generac Power was

“provid[ing] the day-to-day accounting services for the parent, purchas[ing]

goods for the parent, [or] engag[ing] in collection services for the parent.”

Yellow Pages Photos, Inc. v. Ziplocal, LP, No. 8:12-CV-755-T-26TBM, 2012 WL

5830590, at *4 (M.D. Fla. Nov. 16, 2012) (summarizing Florida caselaw). Nor

do the plaintiffs provide evidence that Generac Holdings sufficiently controlled

Generac Power or participated in the design, distribution, or warranting of the

generators at issue here. In fact, only “Generac Power Systems, Inc.” is a party

to the Limited Warranty at the heart of the plaintiffs’ complaint. Said another

way, Generac Holdings “was not a party to the contract at issue, was not

involved in the Plaintiffs’ shipments, and has had no communication with the

Plaintiffs.” SX Holdings, LLC v. iContainers USA, Inc., No. 1:22-CV-20824,

2025 WL 901245, at *5 (S.D. Fla. Mar. 25, 2025). Ultimately, then, because

plaintiffs fail to meet their burden to rebut Generac Holdings’ evidence that

subsidiary Generac Power maintained a separate “semblance of identity,” I

dismiss all counts against Generac Holdings for lack of personal jurisdiction.

2. This Court lacks personal jurisdiction over nonresident

plaintiffs’ claims against a nonresident defendant

Generac2 lodges another jurisdictional attack, claiming that “binding

Supreme Court precedent establishes that non-resident plaintiffs (the non-

Florida Plaintiffs here) cannot sue non-resident defendants ([Generac

Holdings and Generac Power]) in a foreign forum without an ‘adequate link

between the [foreign forum] and the nonresidents’ claims.’ ” MTD at 19

2 Unless otherwise specified, subsequent references to “Generac” refer to the

remaining defendant, Generac Power.

(quoting Bristol-Myers, 582 U.S. at 264). In response, the plaintiffs argue that

Bristol-Myers’s holding “does not bar claims of non-resident class members in

federal court,” and in any event that it would be premature to dismiss those

plaintiffs on personal jurisdiction grounds. Resp. at 7. Because I disagree with

the plaintiffs’ characterization of Bristol-Myers and the line of district court

decisions purporting to limit its application in class actions, I dismiss all claims

brought by nonresident plaintiffs for lack of jurisdiction.

Named plaintiffs in a putative class action must comply with personal

jurisdiction requirements. See Story v. Heartland Payment Sys., LLC, 461 F.

Supp. 3d 1216, 1231 (M.D. Fla. 2020); see also Mussat v. IQVIA, Inc., 953 F.3d

441, 447 (7th Cir. 2020) (“We see no reason why personal jurisdiction should

be treated any differently from subject-matter jurisdiction and venue: the

named representatives must be able to demonstrate either general or specific

personal jurisdiction.”). Bristol-Myers does not counsel otherwise. In Bristol-

Myers, a group of plaintiffs—consisting of 86 California residents and 592

residents from 33 other States—filed eight separate suits as a mass-tort action

in California state court, alleging injuries caused by a pharmaceutical drug

manufactured by Bristol-Myers Squibb, a non-California resident. 582 U.S. at

258–59. The Supreme Court held that for the California state court to exercise

personal jurisdiction over the nonresident defendant, “there must be an

‘affiliation between the forum and the underlying controversy, principally, [an]

activity or an occurrence that takes place in the forum State.’ ” Id. at 262

(quoting Goodyear, 564 U.S. at 919) (alteration in original). In so holding, the

Court “le[ft] open the question whether the Fifth Amendment imposes the

same restrictions on the exercise of personal jurisdiction by a federal court.”

Id. at 269; see also id. at 278 n.4 (Sotomayor, J., dissenting) (“The Court today

does not confront the question whether its opinion here would also apply to a

class action in which a plaintiff injured in the forum State seeks to represent

a nationwide class of plaintiffs, not all of whom were injured there.”).

Contrary to the plaintiffs’ view, see Resp. at 6–7, this language does not

suggest Bristol-Myers’s rule never applies in federal court—only that it might

not apply where the defendant’s due process rights are governed by the Fifth

Amendment. See SEC v. Carrillo, 115 F.3d 1540, 1543 (11th Cir. 1997) (“When

a district court’s subject matter jurisdiction is founded upon a federal question,

the constitutional limits of the court’s personal jurisdiction are fixed, in the

first instance, not by the Fourteenth Amendment but by the Due Process

Clause of the Fifth Amendment.” (quoting United Elec., Radio & Mach.

Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir. 1992))).

The Fifth Amendment applies, for example, “[w]hen the jurisdictional issue

flows from a federal statutory grant that authorizes . . . nationwide service of

process.” Carter v. Ford Motor Co., No. 19-62646-CIV, 2021 WL 1165248, at

*13 (S.D. Fla. Mar. 26, 2021) (quoting SEC v. Straub, 921 F. Supp. 2d 244, 253

(S.D.N.Y. 2013)). But in federal diversity cases, including class actions like the

one here, “there is no question that the pertinent referent is the Fourteenth

Amendment” and its emphasis on state-specific contacts. Id.

The plaintiffs further contend that districts courts in this Circuit have

extrapolated the above statements of non-decision into a “growing body of law

. . . holding that Bristol-Myers does not bar claims of non-resident members of

a putative class from asserting claims in federal court.” In re Takata Airbag

Prods. Liab. Litig., 396 F. Supp. 3d 1101, 1134 (S.D. Fla. 2019) (citing Lee v.

Branch Banking & Tr. Co., 2018 WL 5633995, at *6 (S.D. Fla. Oct. 31, 2018));

see also Tickling Keys, Inc. v. Transamerica Fin. Advisors, Inc., 305 F. Supp.

3d 1342, 1351 (M.D. Fla. 2018) (declining “to extend Bristol-Myers to the class

action context”). But the “Plaintiffs’ reliance on these cases . . . is misplaced

because those cases addressed personal jurisdiction over unnamed class

members.” Garrett-Alfred, 540 F. Supp. 3d at 1135. Bristol-Myers’s

requirements apply fully to named class action plaintiffs. Accordingly, “since

Bristol-Myers—and even in the context of class actions—no court in this Circuit

has exercised personal jurisdiction over the out-of-state claims of out-of-state

named plaintiffs.” Carter, 2021 WL 1165248, at *12. “In the end, calling a case

a class action doesn’t magically absolve the named plaintiffs of their

obligations to establish personal and subject-matter jurisdiction over the

defendants.” Id. at *13.

Here, the complaint names plaintiffs who reside in Georgia (Margaret

and Mark Clemm), Kansas (Vernon McBee), Louisiana (Keven and Karen

Lovetro), North Carolina (Kevin Kingsley), and Texas (Ernest and Nora

Fuentes). Am. Compl. ¶¶ 198–229. Those plaintiffs purchased Generac

generators from authorized retailers in their states of residence and claim that

the generators malfunctioned during use within those states. Id. In other

words, these named, nonresident plaintiffs “do not allege that they: reviewed

advertising related to their generators in Florida; purchased their generators

in Florida; installed their generators in Florida; used their generators in

Florida; sought warranty coverage in Florida; or had any other relevant contact

with [Generac] in Florida.” MTD at 21. So, the plaintiffs cannot dispute that

this Court lacks specific jurisdiction over Generac because their claims do not

“arise out of or relate to at least one of the defendant’s contacts with the forum.”

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013)

(citation modified).

Nor do the plaintiffs persuade that Generac is subject to general

jurisdiction in Florida. Section 48.193(2) of Florida’s long-arm statute

authorizes courts to establish general jurisdiction over a defendant “who is

engaged in substantial and not isolated activity within the state, whether such

activity is wholly interstate, intrastate, or otherwise . . . whether or not the

claim arises from that activity.” Because “this provision extends to the limits

on personal jurisdiction imposed by the Due Process Clause of the Fourteenth

Amendment,” this Court “need only determine whether [its] exercise of

jurisdiction over [Generac] would exceed constitutional bounds.” Fraser v.

Smith, 594 F.3d 842, 846 (11th Cir. 2010). Constitutionally, “[a] court may

assert general jurisdiction over” a nonresident corporation only “when their

affiliations with the State are so ‘continuous and systematic’ as to render them

essentially at home in the forum State.” Goodyear, 564 U.S. at 919 (citation

omitted). But “a corporation’s operations in a forum other than its formal place

of incorporation or principal place of business will be so substantial and of such

a nature as to render the corporation at home in that State only in exceptional

cases.” Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir.

2015) (citation modified).

Generac is “incorporated in Wisconsin, and also headquartered in

Waukesha, Wisconsin.” Am. Compl. ¶ 71. True, Generac also sells its

generators through authorized retailers in Florida “to thousands of consumers

in this district and throughout the State.” Id. ¶ 78. “[B]ut ties serving to bolster

the exercise of specific jurisdiction,” such as distributing products into a state,

“do not warrant a determination that, based on those ties, the forum has

general jurisdiction over a defendant.” Goodyear, 564 U.S. at 927 (emphasis

added); see Daimler, 571 U.S. at 139 (rejecting the “exorbitant exercise[] of all-

purpose jurisdiction” in every state in which a corporation’s “sales are sizable”).

Because Generac is neither incorporated in Florida nor maintains its principal

place of business in Florida, Generac has not subjected itself to general

jurisdiction here simply by selling its products in the State. Accordingly,

nonresident named plaintiffs must either file suit in their states of residence

or join any later-certified national class. Their claims in Counts VII, VIII, and

IX are dismissed without prejudice for lack of personal jurisdiction.

C. Failure to State a Claim for Relief

In addition to attacking standing and personal jurisdiction, Generac

argues that the plaintiffs fail to state a claim on their contract, tort, and

statutory counts. See MTD at 26–49. Because this Court lacks personal

jurisdiction over the named nonresident plaintiffs, I do not address those

plaintiffs’ individual state-law claims under Kansas, Louisiana, or North

Carolina law.

Before discussing each individual claim, Generac faults the plaintiffs for

alleging a latent defect without “explain[ing] what [the defect] is.” MTD at 27;

see also Reply at 7 (arguing that plaintiffs are “unsure if there is one or

multiple alleged ‘defect(s)’ ”). While I agree that the plaintiffs do not identify a

single defect common to all generators, Generac does not explain how doing so

is required for any claim here. And I disagree that, insofar as the existence of

defects is relevant, the plaintiffs insufficiently describe the alleged defect.

Rather, the plaintiffs explain that the generators “contain a latent defect which

accelerates the wear and deterioration of critical parts associated with the

alternator, including the slip rings and carbon brushes, and creates increased

friction and resistance between components . . . result[ing] in . . . poor contact

between the carbon brushes and slip rings, further damage, and premature

wear or failure of the surrounding components.” Am. Compl. ¶ 4; see also id.

¶¶ 5–6 (further describing the defects). Pre-discovery, that description is

sufficient. As for Generac’s arguments on the plaintiffs’ remaining counts, I

address each in turn.

1. The plaintiffs sufficiently allege a breach of express

warranty claim (Count I)

The plaintiffs allege that Generac breached the Limited Warranty and

other descriptive warranties by knowingly selling defective generators that

failed to conform to Generac’s representations. Am. Compl. ¶ 296. Generac

argues that the plaintiffs fail to state a claim under either theory because they

do not allege a breach of the terms of the Limited Warranty, nor do they allege

“an actionable descriptive warranty.” MTD at 19. I agree only on the latter

point.

To state a claim for breach of an express warranty under the Florida

Uniform Commercial Code,3 a complaint must allege: (1) the sale of goods; (2)

3 The plaintiffs “bring this claim for breach of express warranty against Generac . . .

pursuant to Uniform Commercial Code [UCC] § 2-313, which has been adopted by

and is materially the same under the laws of each state.” Am. Compl. ¶ 287.

an express warranty; (3) breach of the warranty; (4) notice to seller of the

breach;4 and (5) the injuries sustained by the buyer as a result of the breach of

the express warranty. Dunham-Bush, Inc. v. Thermo-Air Serv., Inc., 351 So. 2d

351, 353 (Fla. 4th DCA 1977). Contractual privity is ordinarily required unless

the warranty is intended to benefit subsequent owners. See Mesa v. BMW of N.

Am., LLC, 904 So. 2d 450, 457–58 (Fla. 3d DCA 2005). A product seller creates

an express warranty by making “[a]ny affirmation of fact or promise,” “[a]ny

description of the goods,” or offering “[a]ny sample or model” which “is made

part of the basis of the bargain.” § 672.313(1), Fla. Stat. A seller need not “use

formal words such as ‘warrant’ or ‘guarantee’ or . . . have a specific intention to

make a warranty, but an affirmation merely of the value of the goods or a

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

goods does not create a warranty.” § 672.313(2), Fla. Stat. However, the seller

can disclaim “any and all express . . . warranties.” Belle Plaza Condo. Ass’n,

4 Generac claims that the plaintiffs failed to provide the required pre-suit notice. MTD

at 21 (citing § 672.607(3)(a), Fla. Stat.). For now, the plaintiffs persuade that they

provided sufficient notice to Generac, see Resp. 22–23 (citing Am. Compl. ¶¶ 85, 102,

116, 120, 124, 128, 132, 138, 144, 169, 170, 180, 190, 194, 197, 201, 203, 212, 214, 246,

247, 308, 354). Accordingly, I do not decide whether “notice is required to be given to

the seller, not the manufacturer, under Florida law.” PB Prop. Mgmt., Inc. v.

Goodman Mfg. Co., L.P., No. 3:12-CV-1366-HES-JBT, 2014 WL 12640371, at *4 (M.D.

Fla. Aug. 14, 2014); but see Valiente v. Unilever United States, Inc., No. 22-21507,

2022 WL 18587887, at *16 (S.D. Fla. Dec. 8, 2022) (“[P]ermitting a plaintiff to sue the

manufacturer of a product for breach of express warranty without providing notice of

a breach would thwart the legislative intent of the notice requirement.”).

Inc. v. B.C.E. Dev., Inc., 543 So. 2d 239, 240 (Fla. 3d DCA 1989) (per curiam);

see § 672.316(1), Fla. Stat. (permitting exclusion of express warranties).

i. Limited Warranty

In its Limited Warranty, Generac “warrants that its Generator and/or

transfer switch system will be free from defects in material and workmanship”

for up to five years or two-thousand hours. (Doc. 27-1). “[A]t its discretion,”

Generac will “repair or replace any part(s) which, upon evaluation, inspection

and testing by Generac or an Independent Authorized Service Dealer, is found

to be defective.” Id; see also id., Guidelines ¶ 6 (“Generac may choose to repair,

replace or refund a piece of equipment in its sole discretion.”). Generac does

not dispute that the warranty applies to the plaintiffs’ generators but instead

disputes whether the complaint fairly alleges a breach of those terms.

Generac first claims that the defect is not covered by the Limited

Warranty’s plain language. Here, I disagree. The plaintiffs allege that certain

generators “had issues with premature deterioration and rapid wear of

components such as the slip rings and the carbon brushes, which caused

consumers’ Class Generators to experience a reduction or interruption in

power output and/or failure.” Am. Compl. ¶ 247. That fairly alleges a “defect[]

in material and workmanship.” See Limited Warranty. Additionally, Generac’s

rejoinder that the Limited Warranty excludes “[r]epairs required as a result of

[hurricanes],” MTD at 30, appears to misread the plaintiffs’ allegations. The

plaintiffs do not allege that their generators malfunctioned because of a

hurricane, rather that they malfunctioned during a hurricane. See, e.g., Am.

Compl. ¶ 86 (alleging that Plaintiff James Dawson’s generator’s “failure during

the hurricane was caused by a malfunction associated with the carbon

brushes”).

Even so, Generac maintains it could not breach where “no Plaintiff

alleges [Generac] denied a warranty repair.” MTD at 18. But individual named

plaintiffs allege as much. For example, after Plaintiff James Dawson’s

generator allegedly malfunctioned during Hurricane Ian, a “Generac

authorized technician” “was unable to repair Mr. Dawson’s [generator] that

day.” Am. Compl. ¶ 86. When the technician later returned, he “refused to

address the Defect, or issues associated with the slip rings and related

components,” explaining that “he could not perform repairs on the slip rings at

the time because Generac advised that there were no issues with those

components.” Id. Likewise, “even after Generac installed the new brushes” in

Plaintiff Edmond Hill’s generator, it was “still not operational.” Id. ¶ 91; see id.

¶ 144 (Florida Plaintiffs Jeffrey and Alison Maiuzzo “have not received a

definitive repair date,” and “Generac provided no assistance and instead gave

[them] the runaround through an unhelpful support thread.”); id. ¶ 150

(“Despite updating firmware and running diagnostics, Trademark Electric was

unable to repair Mr. Matheny’s Class Generator.”). Insofar as the Limited

Warranty provides for repair or replacement as exclusive remedies, I find the

plaintiffs’ allegations sufficient to state a breach claim and thus need not

decide whether those remedies cause the warranty to “fail[] its essential

purpose,” as suggested by the plaintiffs. Resp. at 24 (citing Pinellas Suncoast

Transit Auth. v. Mincom, Inc., No. 8:06-CV-2042-T-17-EA, 2007 WL 1222595,

at *3–4 (M.D. Fla. Apr. 24, 2007).

ii. Descriptive Warranties

The plaintiffs further allege that Generac, through its print and online

advertising, warranted that its products were (among other things) “capable of

handling the rigors of generator use, resulting in power that’s more reliable

and requires less routine maintenance than any competitive engine,” would

“provide the automatic backup power you need to protect your home and family

during a power outage,” and had “tough, durable, corrosion-resistant

aluminum enclosures perfect for all weather conditions.” Am. Compl. ¶¶ 230–

34. Generac claims that those statements are non-actionable opinions, and in

any event, were disclaimed by the Limited Warranty.

It is axiomatic that “certain affirmations of the seller amount only to

‘puffing’ and do not give rise to warranties, e.g., the ‘nicest car in town.’ ” Carter

Hawley Hale Stores, Inc. v. Conley, 372 So. 2d 965, 969 (Fla. 3d DCA 1979); see

Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995) (finding a seller’s

representations that a building was “a very good building” and “an excellent

deal” were “clearly statements of opinion”); § 672.313(2), Fla. Stat. (“[A]

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

goods does not create a warranty.”). Generac’s purported warranties that its

generators “run[] for as long as necessary until utility power returns” and

“deliver best-in-class power quality,” Am. Compl. ¶ 234, are much closer to

statements of opinion or “mere puffery or sales talk [that] is not sufficient to

create an express warranty.” Aprigliano v. Am. Honda Motor Co., 979 F. Supp.

2d 1331, 1341 (S.D. Fla. 2013) (finding that Honda’s statements that its

motorcycle was “unbelievably smooth, quiet, and vibration-free” and “in a class

of its own” were “textbook puffery and mere opinion” (citation modified)). And

even assuming Generac’s marketing statements were actionable, the Limited

Warranty “supersedes all other warranties, express or implied” and disclaims

any other “warranties as to the merchantability or fitness for a particular

purpose.” Florida law permits as much. See Belle Plaza Condo., 543 So. 2d at

240. Accordingly, because the Limited Warranty disclaims any descriptive

warranties, I dismiss the plaintiffs’ breach claim (Count I) as to those

warranties.

2. Generac’s disclaimer in the express warranty forecloses

the plaintiffs’ breach of implied warranty claim (Count

II)

The plaintiffs allege that Generac breached implied warranties that its

generators “were free of defects, merchantable, of good quality, reliable, and fit

for the ordinary purpose of a standby generator designed to power a home in

the event of a power outage.” Am. Compl. ¶ 303. Generac responds that the

plaintiffs do not state a claim because they do not allege pre-suit notice or

privity with Generac and because the Limited Warranty disclaims any implied

warranties. MTD at 34–35. The latter point again proves dispositive.

To state a claim for breach of an implied warranty of merchantability, a

plaintiff must allege that a seller “is a merchant with respect to goods of that

kind” and breached the implied warranty that its good were of adequate

quality, and that a plaintiff provided notice of the breach and ultimately

suffered damages. § 672.314, Fla. Stat; Dunham-Bush, 351 So. 2d at 353.

Additionally, “[u]nder Florida law, privity of contract is required to maintain

an action for breach of an implied warranty [of merchantability].” Ocana v.

Ford Motor Co., 992 So. 2d 319, 325 (Fla. 3d DCA 2008). But some courts have

relaxed the privity requirement to allow claims for breach of implied warranty

by third-party beneficiaries or where the retailer was the manufacturer’s

authorized agent. See, e.g., Weiss v. Gen. Motors LLC, 418 F. Supp. 3d 1173,

1183 (S.D. Fla. 2019) (collecting cases). I need not decide the privity or notice

questions, though, because Generac adequately disclaimed any implied

warranty.

In Florida, a product seller may disclaim express or implied warranties.

To disclaim an implied warranty of merchantability, “the language must

mention merchantability and in case of a writing must be conspicuous.”

§ 672.316(2), Fla. Stat. A term or clause is conspicuous when it is written,

displayed, or presented so that a reasonable person to whom it will operate

against should have noticed it. Id. § 671.201(11). Ordinarily, disclaimers made

in capitalized, boldfaced, or larger typeface are sufficiently conspicuous. See,

e.g., Rudy’s Glass Const. Co. v. E.F. Johnson Co., 404 So. 2d 1087, 1089 (Fla.

3d DCA 1981) (finding that a boldfaced disclaimer in all capital letters was

conspicuous); Baker v. Brunswick Corp., No. 2:17-CV-572-FTM-99MRM, 2018

WL 1947433, at *4–5 (M.D. Fla. Apr. 25, 2018) (same).

The Limited Warranty here checks all the boxes necessary to disclaim

Generac’s implied warranties. In capitalized and bold font, the warranty

clarifies that it “supersedes all other warranties, expressed or implied.” More

specifically, the Limited Warranty explains that “Generac makes no other

warranties as to the merchantability or fitness for a particular purpose.”

Courts have regularly found nearly identical language sufficient to disclaim

implied warranties. See, e.g., Kelly v. Lee Cnty. R.V. Sales Co., No. 8:18-CV-

424-T-27JSS, 2019 WL 5887482, at *5–6 (M.D. Fla. Nov. 12, 2019), aff’d sub

nom. Kelly v. Lee Cnty. RV Sales Co., 819 F. App’x 713 (11th Cir. 2020). I do

the same here, and dismiss with prejudice the plaintiffs’ claim for breach of the

implied warranty of merchantability.

3. The plaintiffs’ claims for negligent misrepresentation

(Count III) and fraudulent concealment or

misrepresentation (Count IV) are barred by Florida’s

economic loss rule

The plaintiffs next bring two related tort claims for negligent

misrepresentation and fraudulent concealment or misrepresentation related to

“Generac’s conduct and acts associated with the sale and marketing of the

Class Generators.” Am. Compl. ¶¶ 314, 325. Central to both claims, the

plaintiffs say that Generac represented its generators would be “free from

defects” despite knowing that its generators’ “major alternator components

would suffer from premature degradation and wear, causing the units to

exhibit reduced power output and/or result in premature failure to power the

consumers’ homes, especially during inclement weather, like a hurricane.” Id.

¶¶ 317, 335. According to the plaintiffs, Generac had a duty to disclose those

defects but failed to do so to “induce reliance on the part of Plaintiffs” to

purchase the generators. Id. ¶ 337. Generac responds that both claims should

be dismissed because they are barred by Florida’s economic loss rule and

independent tort doctrine, lack particularity under Rule 9(b), and because

Generac neither owed the plaintiffs a duty to disclose nor do the plaintiffs

sufficiently allege their reliance on Generac’s representations. See MTD at 35–

40; Reply at 7–8. Although the latter three arguments have merit, I conclude

that Florida’s economic loss rule mandates dismissal of these claims.

In Florida, “the economic loss rule is a judicially created doctrine that

sets forth the circumstances under which a tort action is prohibited if the only

damages suffered are economic losses.”5 Tiara Condo. Ass’n v. Marsh &

McLennan Cos. Inc., 110 So. 3d 399, 401 (Fla. 2013). Economic losses include

“damages for inadequate value, costs of repair and replacement of the defective

product, or consequent loss of profit—without any claim of personal injury or

damage to other property.” Id. Ultimately, the economic loss rule “prohibit[s]

a party from suing in tort for purely economic losses to a product or object

provided . . . for consideration, the rationale being that in those cases ‘contract

principles [are] more appropriate than tort principles for resolving economic

loss without an accompanying physical injury or property damage.’ ” Id. at 405

(quoting Moransais v. Heathman, 744 So. 2d 973, 980 (Fla. 1999)); id. at 401

(“A historical review of the doctrine reveals that it was introduced to address

attempts to apply tort remedies to traditional contract law damages.”).

5 Under the related but distinct independent tort doctrine, “a plaintiff may not recover

in tort for a contract dispute unless the tort is independent of any breach of contract.”

Island Travel & Tours, Co. v. MYR Indep., Inc., 300 So. 3d 1236, 1239 (Fla. 3d DCA

2020) (per curiam). A plaintiff bringing both a breach of contract and a tort claim

must therefore allege, in addition to the breach of contract, “some other conduct

amounting to an independent tort.” Lamm v. State St. Bank & Tr., 749 F.3d 938, 947

(11th Cir. 2014) (quoting U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So. 3d 477,

480 (Fla. 2d DCA 2013)). Outside of the products liability context, the doctrine

operates as a “separate hurdle” for tort claims. Lamm, 749 F.3d at 947. Because I do

not think the plaintiffs’ claims avoid the economic loss rule, I need not determine

whether they clear any related but “separate hurdle” posed by the independent tort

doctrine.

Although the Florida Supreme Court at times “expand[ed] the application of

the rule beyond its origins,” Moransais, 744 So. 2d at 980, it has since squarely

returned “the economic loss rule to its origin in products liability,”6 Tiara, 110

So. 3d at 407.

In limiting the economic loss rule to products liability actions, the

Florida Supreme Court detailed the rule’s historical development and noted

several then-continuing exceptions, including “fraudulent inducement, and

negligent misrepresentation, or free-standing statutory causes of action.” Id.

at 406. But “the fraudulent inducement and negligent misrepresentation cases

to which the court cited were outside of the products liability context,” In re

Takata Airbag Prods. Liab. Litig., 193 F. Supp. 3d 1324, 1338 (S.D. Fla. 2016),

and were highlighted merely to criticize the extension of the rule “beyond [the

Court’s] original limited intent,” Tiara, 110 So. 3d at 406. The oft-confused

dicta cannot counterbalance the Tiara court’s retention of the economic loss

rule’s core, which “protect[s] manufacturers from liability for economic

6 Following the Florida Supreme Court’s narrowing of the economic loss rule, there

was initial confusion about whether the independent tort doctrine remained good law.

See, e.g., King v. Bencie, 752 F. App’x 881, 883 (11th Cir. 2018) (per curiam) (“Florida

law . . . is still ‘somewhat unsettled in this area.’ ” (quoting Lamm, 749 F.3d at 947)).

Although I need not apply the doctrine here, I observe that it continues to remain

good law. See Manor House, LLC v. Citizens Prop. Ins. Corp., 277 So. 3d 658, 662 (Fla.

5th DCA 2019) (continuing to use independent tort doctrine), decision quashed on

other grounds, 313 So. 3d 579 (Fla. 2021); Un2jc Air 1, LLC v. Whittington, 324 So.

3d 1, 3 (Fla. 4th DCA 2021) (same); Island Travel & Tours, Co., 300 So. 3d at 1239

(Fla. 3d DCA 2020) (same).

damages caused by a defective product beyond those damages provided by

warranty law.” Tiara, 110 So. 3d at 401. Unsurprisingly, then, the plaintiffs

“do not cite a single [post-Tiara] case applying the negligent misrepresentation

exception to the economic loss rule in the products liability context.”

Aprigliano, 979 F. Supp. 2d at 1338.

I therefore agree with other courts in this Circuit that have concluded

that the Florida Supreme Court, “by its dicta, [did not] intend[] to abridge the

economic loss rule in the products liability setting to allow fraudulent

inducement and negligent misrepresentation claims (and by implication

fraudulent concealment claims), . . . where the action for fraud depends upon

precisely the same allegations as a warranty claim—i.e., a claim the product

failed to work as promised.” Takata, 193 F. Supp. at 1338–39; Glob. Quest, LLC

v. Horizon Yachts, Inc., 849 F.3d 1022, 1031 (11th Cir. 2017) (explaining that

“a fraudulent inducement claim still must be independent of a breach of

contract claim,” i.e., “the fraud allegations are separate and distinct from

defendants’ performance under the contract”); see also Aprigliano, 979 F. Supp.

2d at 1337–39 (applying rule where the plaintiffs’ “cause of action for negligent

misrepresentation is dependent on the same fundamental allegations

contained in the breach of warranty claim—specifically, that Honda breached

the terms of its Warranties by providing Plaintiffs with defective motorcycles”);

Vazquez v. Gen. Motors, LLC, 2018 WL 447644, at *6 (S.D. Fla. Jan. 16, 2018)

(“Fraudulent concealment claims in the products liability sphere that seek to

recover only economic damages are clearly barred by Florida’s economic loss

rule.”). Concluding otherwise “would allow the economic loss rule to be

manipulated such that any time a purchaser received a defective product that

did not cause any injuries or damage to other property, [he] could assert claims

for negligent and fraudulent concealment regarding the defect to avoid the

economic loss rule.” Burns v. Winnebago Indus., Inc., No. 8:13–cv–1427–T–24,

2013 WL 4437246, at *4 (M.D. Fla. Aug. 16, 2013).

Applying the economic loss rule here, I find that the plaintiffs’ negligent

misrepresentation and fraudulent concealment claims are foreclosed. The

plaintiffs allege that they relied on Generac’s representations that its

generators were “free from defects” and of sufficient “quality and reliability,”

and that “had Generac disclosed that its Generators did not conform to [those

representations], then Plaintiffs . . . would not have purchased the Class

Generators.” Am. Compl. ¶¶ 322, 340. But the Limited Warranty makes

effectively the same claim:7 Generac “warrants that its Generator and/or

transfer switch system will be free from defects in material and workmanship

for the items and period [herein].” See also Am. Compl. ¶ 293 (Generac

7 Likewise, as the defendants note, the plaintiffs base their descriptive warranty and

tort claims on the same set of representations made by Generac. Compare Am. Compl.

¶ 292 (identifying alleged descriptive warranties “in paragraphs 230 through 234(a)–

(m)”), with id. ¶ 332 (identifying the same representations underpinning tort claims).

“expressly warranted that the Class Generators were safe and reliable

products designed to generate power and manage electricity for Plaintiffs’ and

the putative Class Members’ homes.”). And the Limited Warranty provides a

remedy for a breach of that guarantee, i.e., that Generac will “at its discretion,

repair or replace any part(s)” it finds to be defective. But the plaintiffs’

negligent misrepresentation and “fraudulent concealment claims allege

precisely what a breach of warranty claim would allege—namely that the

[Generac generators] did not work as promised,” and that Generac should be

liable for failing to disclose contrary facts. Takata, 193 F. Supp. at 1339. In

either scenario, the plaintiffs could, at most, recoup damages equal to the loss

in their benefit of the bargain.

The plaintiffs’ responses are unconvincing. They first suggest that

Generac’s “pre-sale and post-sale conduct” are independent. Resp. at 28. But

even before Tiara, Florida courts recognized that even if a representation was

precontractual, if “the alleged fraudulent misrepresentation is inseparable

from the essence of the parties’ agreement, the economic loss rule applies.”

Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So. 2d 74, 78 (Fla. 3d DCA

1997). The allegedly fraudulent statements here are inextricably bound up

with Generac’s warranty claim and thus cannot support an independent tort.

Next, the plaintiffs state that their tort claims “do not only assert a

depressed economic expectation” but also some unspecified “ongoing harm[s]”

related to “Generac’s deceptive practices to induce the purchase of the

generators, and the intentional and ongoing concealment of the defect.” Resp.

at 28. But no matter how the plaintiffs try to qualify or distinguish these

harms, they amount to claims for “damages for inadequate value, costs of

repair and replacement of the defective product, or consequent loss of profits—

without any claim of personal injury or damage to other property.” Tiara, 110

So. 3d at 401 (citations omitted). Economic losses, in other words. The plaintiffs

do not allege either personal injury or damage to other property. Accordingly,

because we remain in the products liability sphere and because Generac’s

warranty already speaks to the plaintiffs’ losses, “contract principles are more

appropriate than tort principles for resolving economic loss without an

accompanying physical injury or property damage.” Tiara, 110 So.3d at 405

(citation modified). The plaintiffs’ claims for negligent misrepresentation

(Count III) and fraudulent concealment (Count IV) are therefore dismissed

with prejudice.

4. The plaintiffs’ negligence claim (Count V) is likewise

precluded by the economic loss rule

The economic loss rule proves similarly fatal to the plaintiffs’ negligence

claim. On this front, the plaintiffs allege that by “producing and selling”

defective generators, Generac breached its “duty . . . to exercise reasonable and

ordinary care in the formulation, testing, design, manufacture, and marketing

of the Class Generators, either through its own testing or by verifying third-

party test results,” and to use “ordinary and reasonable care in the design and

manufacture of the Class Generators.” Am. Compl. ¶ 350–52. But that duty—

assuming it exists—appears no different from the duty Generac owed under

the Limited Warranty. And the purportedly breaching conduct is nearly

identical: Generac “knowingly provid[ed] . . . Class Generators containing a

Defect that was never disclosed to Plaintiffs,” “fail[ed] to adequately repair the

Defect,” and “suppl[ied] products and materials that failed to conform to the

representations made by Generac.” Am. Compl. ¶ 296.

More, the damages flowing from the breaches are the same. Under the

warranty, the plaintiffs seek “the revocation of acceptance of the goods and the

return to Plaintiffs . . . of the purchase price of all Class Generators . . . and for

such other incidental and consequential damages as allowed.” Am. Compl.

¶ 299. From Generac’s negligence, the plaintiffs claim to “have suffered

damages . . . including repair and replacement costs and damages.” Id. ¶ 356.

In other words (again), economic losses. Accordingly, because the plaintiffs’

negligence claim alleges precisely what its breach of warranty claim does—

that the generators failed to work as promised—Florida’s economic loss rule

prohibits it. The plaintiffs’ negligence claim (Count V) is dismissed with

prejudice.

5. The plaintiffs insufficiently plead a violation of

Florida’s Unfair and Deceptive Trade Practices Act

Lastly, the plaintiffs allege that Generac Power’s same behavior—

misrepresenting “the quality and reliability of [its] standby generators” despite

knowing that those generators “possessed defects that would result in reduced

generator power output and/or premature failure”—violates FDUTPA. Am.

Compl. ¶¶ 365–374. In turn, Generac argues that the plaintiffs fail to state a

claim for three reasons. First, Generac says that the economic loss rule and

independent tort doctrine bar the claim. MTD at 41. Second, Generac claims

that the plaintiffs fail to specifically plead a deceptive or unfair act. Id. at 41–

42. And third, the plaintiffs cannot seek injunctive relief where they do not

intend to purchase generators in the future. Id. at 43. The plaintiffs do not

respond to Generac’s arguments and have therefore abandoned their FDUTPA

claim. See, e.g., See Garrett-Alfred, 540 F. Supp. 3d at 1137; cf. Resolution Tr.

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden

upon the district court to distill every potential argument that could be made

based upon the materials before it . . . .”). In the alternative, I agree that the

plaintiffs’ allegations lack the specificity to state a claim and that the plaintiffs

lack standing for injunctive relief.

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts

or practices, and unfair or deceptive acts or practices in the conduct of any

trade or commerce.” § 501.204(1), Fla. Stat. To bring a FDUTPA claim, a

plaintiff must allege three elements: (1) a deceptive act or unfair practice; (2)

causation; and (3) actual damages. See Stewart Agency, Inc. v. Arrigo Enters.,

Inc., 266 So. 3d 207, 212 (Fla. 4th DCA 2019). An act or practice is “unfair” if

it “offends established public policy, is immoral, unethical, oppressive,

unscrupulous, or substantially injurious to consumers,” Suris v. Gilmore

Liquidating, Inc., 651 So. 2d 1282, 1283 (Fla. 3d DCA 1995), and is “deceptive”

if it is “likely to mislead consumers,” Davis v. Powertel, Inc., 776 So. 2d 971,

974 (Fla. 1st DCA 2000) (quotation omitted). Actual damages consist of “the

difference in the market value of the product or service in the condition in

which it was delivered and its market value in the condition in which it should

have been delivered according to the contract of the parties.” Baptist Hosp.,

Inc. v. Baker, 84 So.3d 1200, 1204 (Fla. 1st DCA 2012) (quotation omitted).

Few courts have addressed whether, post-Tiara, Florida’s economic loss

rule bars a FDUTPA claim in the products liability context. So far as I can tell,

no Florida court has directly confronted the issue. But see White v. Ferco Motors

Corp., 260 So. 3d 388, 391 (Fla. 3d DCA 2018) (implying that the economic loss

rule does not apply because “FDUTPA and fraud statutes, in general, exist to

protect a purchaser against the seller, even in the instance of signed

agreements”). And the federal courts to do so are split on the issue. Compare

Karpel v. Knauf Gips KG, 635 F. Supp. 3d 1336, 1339 (S.D. Fla. 2022) (“It is in-

line with this Court’s precedent, then, to now hold that Tiara also abrogated

any exception to the economic loss rule for ‘free-standing statutory causes of

action[,]’ including FDUTPA, in the products liability context.” (quoting Tiara,

110 So. 3d at 406)), with McCabe v. Ford Motor Co., 774 F. Supp. 3d 349, 385

(D. Mass. 2025) (“In sum, Florida courts have consistently held that statutory

causes of action are not limited by the economic loss rule, and Tiara’s

restriction and reaffirmation of the economic-loss rule’s application to tort

claims does not abrogate that principle.” (citation modified)). While I agree

with both Karpel and McCabe to the extent each acknowledges that Florida

courts historically differentiated between torts and statutory causes of action,

I need not weigh in on the debate for three reasons. First, the plaintiffs do not

contest Generac’s arguments. Second, the plaintiffs independently fail to plead

a FDUTPA claim with the specificity required under Federal Rule 9(b), even

after being alerted to these deficiencies in Generac’s first motion to dismiss.

See (Doc. 21) at 33–34; see also, e.g., Cardenas v. Bank of Am., N.A., No. 8:17-

CV-2629-T-33AEP, 2018 WL 2215230, at *4 (M.D. Fla. May 15, 2018)

(dismissing claim with prejudice after multiple unsuccessful attempts to

comply with Rule 9(b)). Third, the plaintiffs do not allege that a consumer

would reasonably rely on Generac’s statements outside the Limited Warranty.

Although courts in this District are split on whether a FDUTPA claim

must always meet Federal Rule of Civil Procedure 9(b)’s heightened pleading

standard, “FDUTPA claims that sound in fraud must comply with Rule 9(b).”

Pop v. LuliFama.com LLC, 145 F.4th 1285, 1293 (11th Cir. 2025). The

plaintiffs’ FDUTPA claim directly alleges fraudulent concealment and

misrepresentation of known defects, triggering Rule 9(b) and its aim to place

the defendants on notice of the alleged conduct or statements. See id. at 1293–

94. To that end, Rule 9(b) requires a complaint to state (1) precisely what

statements or omissions were made in which documents; (2) the time and place

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

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

manner in which they misled the plaintiff; and (4) what the defendant obtained

as a consequence of the fraud. See Cisneros v. Petland, Inc., 972 F.3d 1204,

1216 (11th Cir. 2020).

The plaintiffs fail to satisfy these four categories.8 To be sure, the

plaintiffs identify several statements that they attribute collectively to

Generac Holdings and Generac Power.9 For example, the plaintiffs allege that

the defendants described themselves on their website as “the largest and most

8 To the extent that the plaintiffs maintain that affirmative fraudulent

misrepresentation survives as an exception to the economic loss rule, the pleading

deficiencies here are equally fatal to the plaintiffs’ claim in Count IV. See Mizzaro v.

Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (applying Rule 9(b) standard

to fraud claim).

9 At least one purportedly deceptive statement was made by GenerX, an authorized

Generac retailer and nonparty in this matter. See Am. Compl. ¶ 230 n.7. But the

plaintiffs do not plausibly allege that Generac directed those statements.

reliable source for home, business, and recreational backup generators,”

indicated in a marketing brochure that their products were “capable of

handling the rigors of generator use, resulting in power that’s more reliable

and requires less routine maintenance than any competitive engine,” and

represented in its promotional materials that their generators used “tough,

durable, corrosion-resistant aluminum enclosures perfect for all weather

conditions.” Am. Compl. ¶¶ 230–236. Although the plaintiffs allege that

“Generac made these representations . . . before purchase and at the time of

purchase,” Am. Compl. ¶ 236, the plaintiffs do not specifically allege when

either Generac defendant uttered any specific statement, when or where any

specific plaintiff read the statements, or how each specific statement was

demonstrably false or misleading. These deficiencies are fatal. Without

allegations as to which plaintiffs viewed which statements, or when, the

complaint fails to sufficiently allege the causation necessary for a FDUTPA

claim. See, e.g., Thomas v. Generac Power Sys. Inc., No. 4:18-CV-495-RH/MJF,

2020 WL 9602345, at *5 (N.D. Fla. Dec. 28, 2020) (explaining that FDUTPA’s

causation element requires a plaintiff to allege that the “deceptive act or unfair

practice was likely to cause injury to a reasonably relying consumer” and “that

the type of harm he suffered was reasonably foreseeable to result from the

defendant’s deceptive act or unfair practice” (citation omitted)).10

Alternatively, assuming that the plaintiffs preserved their claim and

satisfied Rule 9(b)’s standard, the plaintiffs’ claim still fails for two additional

reasons. First, the bulk of the allegedly false and misleading statements

constitute nonactionable puffery under FDUTPA. See supra, at Section

III.C(1)(ii); see also Fineman v. Ferragamo USA Inc., 672 F. Supp. 3d 1302,

1312 (S.D. Fla. 2023) (“[T]he alleged misrepresentations at issue are nothing

more than mere puffery and therefore cannot form the basis of a FDUTPA

claim.”), appeal dismissed, No. 23-11987-A, 2023 WL 5939033 (11th Cir. July

19, 2023). Second, the plaintiffs fail to allege that a reasonable consumer would

have relied on Generac’s allegedly deceptive statements because “a consumer

does not act reasonably in relying on express misrepresentations that are

disclaimed by a contract.” Medmoun v. Home Depot U.S.A., Inc., No. 8:21-CV-

1585-KKM-CPT, 2022 WL 1443919, at *5 (M.D. Fla. May 7, 2022) (citing TRG

10 Although the Eleventh Circuit has advised that a plaintiff need not allege reliance

on an allegedly false statement to state a claim under FDUTPA, a plaintiff must still

allege that an objective, reasonable person would have been deceived and relied on

the statement. See Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1283 (11th Cir.

2011). The plaintiffs are therefore not absolved from pleading causation and must

still allege when the defendants made the allegedly misleading statements such that

the Court can assess whether similar consumers were in fact deceived. Cf. Nelson v.

Mead Johnson Nutrition Co., 270 F.R.D. 689, 692 n.2 (S.D. Fla. 2010) (recognizing

that “a deceptive practice can cause a consumer damages even if the consumer does

not rely on the deceptive practice when purchasing a particular product,” such as

where the seller is able to charge a higher price).

Night Hawk Ltd. v. Registry Dev. Corp., 17 So. 3d 782, 784 (Fla. 2d DCA 2009)).

The same goes for Generac’s alleged omissions. See id. (“It follows then that a

consumer could not act reasonably by relying on omissions where the omitted

representation is expressly disclaimed by the contract.”). The Limited

Warranty here expressly disclaims all other express or implied warranties,

including the marketing representations (and omissions) that the plaintiffs

contend violate FDUTPA.

All that remains, then, is Generac’s representations in the Limited

Warranty itself. But insofar as the plaintiffs attack that language as deceptive,

they run headlong into the economic loss rule and independent tort doctrine.

At bottom, “a claim under FDUTPA does not arise merely from an alleged

breach of warranty or a breach of contract claim.” Sweeney v. Kimberly-Clark

Corp., No. 8:14-CV-3201-T-17EAJ, 2015 WL 5446797, at *7 (M.D. Fla. Sept.

15, 2015) (citation modified); see also Hache v. Damon Corp., No. 8:07-cv-1248-

T-30EAJ, 2008 WL 912434, at *2 (M.D. Fla. Apr. 1, 2008) (“[T]he Florida

Supreme Court [has] cautioned that a breach of contract claim without

significant allegations of unfair or deceptive conduct is insufficient to state a

cause of action under FDUTPA.”). The plaintiffs’ claim for a violation of

FDUTPA is therefore dismissed with prejudice, and I need not fully address

Generac’s outstanding argument that plaintiffs’ FDUTPA claim improperly

seeks injunctive relief.11

IV. CONCLUSION

In this putative class action, the plaintiffs bring multi-state claims

against Generac Holdings and Generac Power, alleging that the defendants

misrepresented the quality and reliability of their generators despite being

aware of fatal defects in certain models. After review, I conclude that this Court

lacks personal jurisdiction over nonresident Defendant Generac Holdings and

over all state-law claims brought by non-Florida named plaintiffs.

Additionally, I find that the plaintiffs’ tort claims are barred by Florida’s

economic loss rule and that their FDUTPA claim is insufficiently pleaded and

otherwise fails to state a claim. Accordingly, the following is ORDERED:

1. The defendants’ request for oral argument is DENIED.

2. The defendants’ Motion to Dismiss (Doc. 34) is GRANTED in part and

DENIED in part.

3. The plaintiffs’ claims for Breach of Implied Warranty (Count II),

Negligent Misrepresentation (Count III), Fraudulent Concealment

11 Were the plaintiffs’ FDUTPA claim otherwise well-pleaded, I would conclude that

the plaintiffs do not have standing for injunctive relief absent allegations that they

intend to purchase Generac’s generators in the future. See, e.g., Ohio State Troopers

Ass’n, Inc. v. Point Blank Enters., Inc., 347 F. Supp. 3d 1207, 1228 (S.D. Fla. 2018)

(collecting cases holding that plaintiffs lacked standing for FDUTPA injunctive relief

where they did not allege an intent to purchase the product again).

and/or Misrepresentation (Count IV), Negligence (Count V), and

Violation of the Florida Deceptive and Unfair Trade Practices Act (Count

VI) are DISMISSED with prejudice. The plaintiffs’ claims for

Violation of the Kansas Consumer Protection Act (Count VII), Violation

of the Louisiana Consumer Protection Act (Count VIII), and Violation of

the North Carolina Unfair and Deceptive Practices Act (Count IX) are

DISMISSED without prejudice.

4. This matter will proceed only on Count I (Breach of Express Warranty),

only for the named Florida plaintiffs listed in paragraphs 18-56 of the

Amended Complaint, only as to the 22kW and 24kW standby generator

models, and only against Defendant Generac Power Systems, Inc. The

Clerk is directed to TERMINATE Defendant Generac Holdings, Inc.

from this action.

5. The plaintiffs’ Motion for Reconsideration of the Order Staying Discovery

(Doc. 60) is DENIED as moot. The parties are directed to file an

amended Case Management Report no later than January 9, 2025.

ORDERED in Tampa, Florida, on December 29, 2025.

athryn’ Kimball Mizelle

United States District Judge

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