Ellert

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CHARLES ELLERT, TOSIN

ADESINA, AARON DOMBECK,

GEORGE DOUKAS, and CHAD

WHITAKER,

Plaintiffs,

v. Case No: 6:25-cv-1588-JSS-DCI

YAMAHA MOTOR CORPORATION,

U.S.A., INC.,

Defendant.

___________________________________/

ORDER

Defendant Yamaha Motor Corporation, U.S.A.1 moves to dismiss the claims

of Plaintiffs Tosin Adesina, Aaron Dombeck, George Doukas, and Chad Whitaker for

lack of personal jurisdiction. (Dkts. 33, 43.) Defendant also moves to dismiss the

claims of Plaintiff Charles Ellert for lack of standing and for failure to state a claim.

(Id.) Plaintiffs oppose the motion. (Dkt. 37.) The court held a hearing on Defendant’s

motion on February 19, 2026. Thereafter, Plaintiffs moved to sever and transfer venue

of the claims of Plaintiffs Adesina, Dombeck, Doukas, and Whitaker. (Dkt. 52.)

Defendant opposes the motion. (Dkt. 53.) Upon consideration, for the reasons

outlined below, Defendant’s motion is granted in part and denied in part, and

1 “The complaint names Yamaha Motor Corporation, U.S.A., Inc., but the correct name for the

defendant is Yamaha Motor Corporation, U.S.A.” (Dkt. 33 at 2 n.1.)

Plaintiffs’ motion is denied.

BACKGROUND

Defendant is incorporated and has its principal place of business in California.

(Dkt. 1 ¶ 21.) Until recently, Defendant sold electric power-assisted bicycles, or e-

bikes. (Id. ¶¶ 26–27.) Plaintiffs are five consumers who allegedly bought Defendant’s

e-bikes. (Id. ¶ 9.) Charles Ellert claims to have bought an e-bike—a 2024 Yamaha

Wabash RT—in Florida. (Id. ¶¶ 16, 54.) The other Plaintiffs—Tosin Adesina, Aaron

Dombeck, George Doukas, and Chad Whitaker—are residents of, and allegedly

bought their bikes in, New York, Maryland, and Pennsylvania. (Id. ¶¶ 17–20.)

At the end of 2024, Defendant ran a limited promotional offer shortly before it

stopped selling e-bikes. (Id. ¶¶ 28–31.) Between December 2023 and December 2024,

Defendant advertised a free second battery for customers who bought select e-bike

models and satisfied certain conditions. (Id. ¶ 34.) Each Plaintiff allegedly saw this

promotion and acted on it. (Id. ¶¶ 53–56, 62–65, 71–73, 80–83, 90–93.) The specific

terms of the battery promotion seemingly varied over time; Plaintiffs allege seeing

different versions of the promotion before buying an e-bike. (See id. ¶¶ 55, 64, 72, 82,

92.) Ellert, Dombeck, and Whitaker allegedly saw an ad stating that the promotion

was available to customers who bought a qualifying e-bike “between August 23, 2024

and November 4, 2024,” and that “[u]pon completion of the warranty registration, a

free second battery and end cap ($1,400 value) will be shipped directly to the registered

owners at no additional cost.” (Id. ¶ 55; see id. ¶¶ 72, 92.) In contrast, Doukas and

Adesina allege having seen a variation of the ad that never mentioned an “end cap”

and came with an additional qualification that the promotion applied only “while

supplies last!” (Id. ¶¶ 64, 82.) Plaintiffs’ experiences after buying the bikes also varied.

(See id. ¶¶ 60, 69, 78, 87, 97.) Ellert and Adesina state that they did, in fact, receive a

free second battery, but are missing a small plastic end cap for the battery. (Id. ¶¶ 60,

69.) The other three plaintiffs claim that, “[t]o date,” they have not received a battery.

(Id. ¶¶ 78, 87, 97.)

Based on these allegations, Plaintiffs assert claims under the consumer

protection statutes of Florida, Maryland, New York, and Pennsylvania, as well as

claims for breach of contract, breach of the implied covenant of good faith and fair

dealing, and unjust enrichment. (Id. ¶¶ 117–195.) Plaintiffs bring these claims on

behalf of a putative nationwide class, as well as sub-classes of consumers in Florida,

Maryland, New York, and Pennsylvania. (Id. ¶ 105.) Specifically, Plaintiffs bring

claims for violations of the Florida Deceptive and Unfair Trade Practices Act

(FDUTPA), the Maryland Consumer Protection Act, the New York Business Law,

the New York General Business Law, and the Pennsylvania Unfair Trade Practices

and Consumer Protection Law, in addition to claims for breach of contract, breach of

the implied covenant of good faith and fair dealing, and for unjust enrichment. (Id. at

31–47.)

After Defendant moved to dismiss, Defendant, through its counsel, “shipped

Plaintiff Ellert’s counsel a battery end cap with a letter asserting that by receiving ‘the

battery end cap, Mr. Ellert has now received everything to which he claims he is

entitled under the promotion . . . He thus lacks standing to continue pursuing any

claims in this action.’” (Dkt. 37 at 1 n.1.) Both parties requested oral argument on

Defendant’s motion to dismiss and the events that followed, (Dkts. 34, 38), which the

court granted, (Dkt. 41). Oral argument was held on February 19, 2026. (Dkts. 42,

50, 51.) After oral argument, Plaintiffs moved to sever and transfer venue of the claims

of Plaintiffs Adesina, Dombeck, Doukas, and Whitaker to the United States District

Court for the Central District of California. (Dkt. 52.)

APPLICABLE STANDARDS

“A plaintiff seeking to establish 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.’” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d

1339, 1350 (11th Cir. 2013) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274

(11th Cir. 2009)). “A prima facie case is established if the plaintiff presents sufficient

evidence to defeat a motion for a directed verdict.” Morris v. SSE, Inc., 843 F.2d 489,

492 (11th Cir. 1988). “Vague and conclusory allegations do not satisfy this burden.”

Catalyst Pharms., Inc. v. Fullerton, 748 F. App’x 944, 946 (11th Cir. 2018); see also Storms

v. Haugland Energy Grp., LLC, No. 18-cv-80334, 2018 WL 4347603, at *2 (S.D. Fla.

Aug. 17, 2018) (determining that the pleading standards articulated in Twombly and

Iqbal apply to motions to dismiss under Federal Rule of Civil Procedure 12(b)(2) such

that “[a]llegations that are ‘no more than conclusions’ . . . do not count toward

establishing a prima facie case” of personal jurisdiction (quoting Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009))), report and recommendation adopted by 2018 WL 4347604, at *1

(S.D. Fla. Sept. 4, 2018). In determining whether a plaintiff has established a prima

facie case of personal jurisdiction, “the district court must accept the facts alleged in

the complaint as true” and “must construe all reasonable inferences in favor of the

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

“To survive a motion to dismiss, a complaint must contain sufficient factual

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

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. “[D]etailed factual allegations” are generally not required, but “[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).

A claim sounding in fraud “must state with particularity the circumstances

constituting [the] fraud.” Fed. R. Civ. P. 9(b). To meet this particularity requirement,

the claim must set forth “(1) the precise statements, documents, or misrepresentations

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

manner in which these statements misled the [p]laintiff[]; and (4) what the defendants

gained by the alleged fraud.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d

1364, 1380–81 (11th Cir. 1997). In other words, the claim must provide “the who,

what, when[,] where, and how” of the alleged fraudulent activities. Garfield v. NDC

Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) (quoting Gross v. Medaphis Corp., 977

F. Supp. 1463, 1470 (N.D. Ga. 1997)).

ANALYSIS

The court begins by addressing personal jurisdiction and standing. The court

then considers Plaintiffs' breach of the implied covenant of good faith and fair dealing,

unjust enrichment, breach of contract, and FDUTPA claims.

A. Personal Jurisdiction

For a court to exercise personal jurisdiction over a nonresident defendant, a

plaintiff must show that the exercise of personal jurisdiction is (1) “appropriate under

the state long-arm statute and (2) [would] not violate the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.” United Techs. Corp. v.

Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). “The Florida long-arm statute provides

two bases for the exercise of personal jurisdiction: specific and general jurisdiction.”

PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 808 (11th Cir. 2010).

Even in a class action, “the named representatives must be able to demonstrate either

general or specific personal jurisdiction.” Mussat v. IQVIA, Inc., 953 F.3d 441, 447 (7th

Cir. 2020); accord Lyngaas v. Curaden Ag, 992 F.3d 412, 437 (6th Cir. 2021); Story v.

Heartland Payment Sys., LLC, 461 F. Supp. 3d 1216, 1231 (M.D. Fla. 2020).2

2 “In Florida, before a court addresses the question of whether specific jurisdiction exists under the

long-arm statute, the court must determine whether the allegations of the complaint state a cause of

action.” PVD Windows, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 808 (11th Cir. 2010)

(quotation omitted). However, the court assumes without deciding that the Plaintiffs state a viable

cause of action. See Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008) (“If both Florida law

and the United States Constitution permit, the federal district court may exercise jurisdiction over the

To establish general jurisdiction in Florida, a complaint must plead facts

showing that a company has affiliations with Florida that “are so continuous and

systematic as to render them essentially at home” here. Daimler AG v. Bauman, 571

U.S. 117, 128 (2014) (quotation omitted); see Carmouche v. Tamborlee Mgmt., Inc., 789

F.3d 1201, 1204 (11th Cir. 2015) (“A court may assert general jurisdiction over foreign

(sister-state or foreign-country) corporations, without offending due process when

their affiliations with the [s]tate are so continuous and systematic as to render them

essentially at home in the forum [s]tate.” (quotation omitted)); Gazelles FL, Inc. v. Cupp,

No. 6:18-CV-544-ORL-22KRS, 2018 WL 7364591, at *6 (M.D. Fla. Sept. 26, 2018)

(noting that a complaint must show that the defendants have “continuous and

systematic business contacts with Florida for them to be rendered essentially at home

in Florida”). General jurisdiction is typically established by pointing to a company’s

principal place of business or place of incorporation. See Daimler, 571 U.S. at 137

(explaining that a company’s place of incorporation and principal place of business are

bases for general jurisdiction). Here, Plaintiffs allege that Defendant is incorporated

in and maintains its principal place of business in California. (Dkt. 1 ¶ 21.) Given the

lack of continuous, systematic contact with Florida, the court lacks general jurisdiction

over Defendant. See Mussat, 953 F.3d at 443 (noting that the defendant was not subject

to general jurisdiction in the forum state); Waite v. All Acq. Corp., 901 F.3d 1307, 1317–

nonresident defendant.”); Karnas v. Cuban, No. 22-CV-22538, 2025 WL 3759241, at *7 (S.D. Fla. Dec.

30, 2025) (noting that Florida courts typically must determine whether the complaint states a cause of

action, and assuming without deciding that the complaint did in order to first conduct the personal

jurisdiction analysis).

18 (11th Cir. 2018) (concluding that a Florida court could not assert general

jurisdiction over a corporation because it was not at home in Florida).

Alternatively, specific jurisdiction exists where a plaintiff’s complaint “arises

out of or relates to the defendant’s contacts with the forum.” Daimler, 571 U.S. at 122,

127; see Fla. Stat. § 48.193(1) (extending jurisdiction to claims “arising from” acts “in

this state”). Put another way, specific jurisdiction looks at the relationship between

the plaintiff, the defendant, the forum, and the claims underlying the litigation and

“depends on an affiliation between the forum and the underlying controversy,

principally, [an] activity or an occurrence that takes place in the forum [s]tate.”

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (alterations

adopted and quotation omitted). “When there is no such connection, specific

jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities

in the [s]tate.” Bristol-Myers Squibb Co. v. Super. Ct. of California, San Francisco Cnty., 582

U.S. 255, 264 (2017); see Goodyear, 564 U.S. at 931 n.6 (“[E]ven regularly occurring

sales of a product in a [s]tate do not justify the exercise of jurisdiction over a claim

unrelated to those sales.”). “The plaintiffs bear the burden of establishing” whether

their “claims arise out of or relate to one of the defendant’s contacts with the forum

state” and whether “the nonresident defendant purposefully availed itself of the

privilege of conducting activities within the forum state.” Del Valle v. Trivago GMBH,

56 F.4th 1265, 1275 (11th Cir. 2022) (quotation omitted). “If they carry that burden,”

the defendant “must then make a compelling case that the exercise of jurisdiction

would violate traditional notions of fair play and substantial justice.” Id. (quotation

omitted).

In Bristol-Myers Squibb, the Supreme Court addressed whether courts require

specific jurisdiction over the defendant as to each plaintiff in a multi-plaintiff case

involving injuries allegedly caused by defendant’s drug. 582 U.S. at 258. The Court

applied settled principles of specific jurisdiction to a case brought in California with

“[m]ore than 600 plaintiffs,” only some of whom were California residents or had any

connection to the state. Id. The Court explained that “a defendant’s relationship with

a third party, standing alone, is an insufficient basis for jurisdiction,” even when those

third parties were other plaintiffs in the same case who could “bring claims similar to

those brought by the nonresidents.” Id. at 265 (ellipses and quotation omitted).

Specifically, in that case, “[t]he mere fact that other plaintiffs were prescribed,

obtained, and ingested” the drug at issue “in California—and allegedly sustained the

same injuries as did the nonresidents—d[id] not allow the [s]tate to assert specific

jurisdiction over the nonresidents’ claims.” Id. (emphasis omitted). Because “all the

conduct giving rise to the nonresidents’ claims occurred elsewhere,” the Court held

that “California courts [could not] claim specific jurisdiction” over the defendant as to

those plaintiffs’ claims. Id.3

Similarly, in Lewis v. Mercedes-Benz USA, LLC, the court noted that “[w]hen a

3 “Nothing in Bristol-Myers Squibb suggests that it does not apply to named plaintiffs in a putative class

action; rather, the Court announced a general principle—that due process requires a connection

between the forum and the specific claims at issue.” Feldman v. BRP US, Inc., No. 17-CIV-61150, 2018

WL 8300534, at *4 (S.D. Fla. Mar. 28, 2018) (alterations adopted and quotation omitted). “That

principle applies with equal force whether or not the plaintiff is a putative class representative.” Id.

suit is brought as a purported class action, personal jurisdiction over each defendant is

assessed with respect to the named plaintiffs’ causes of action.” 530 F. Supp. 3d 1183,

1226 (S.D. Fla. 2021). In that class action case, the court noted that “the named out-

of-state [p]laintiffs alleg[d] no connection with Florida whatsoever” and were instead

residents of other states “who did not purchase their [c]lass [v]ehicles in Florida and

did not suffer any injury in Florida.” Id. Thus, the court concluded that the court

could not exercise “personal jurisdiction over the nonresident [p]laintiffs’ state law

claims” and dismissed the nonresident plaintiffs and their claims. Id. at 1226–27.

Here, Plaintiff Ellert invokes the court’s specific jurisdiction over his claims

because they relate to Defendant’s connections to Florida. According to Plaintiff

Ellert, he is a citizen and resident of Florida who bought Defendant’s e-bike, which

“was delivered to Plaintiff’s local Yamaha dealer.” (Dkt. 1 at 5, 16–18.) Because

Ellert presumably became aware of the promotion in Florida, reviewed the offer while

in Florida, made the purchase while in Florida, and picked up the e-bike from his local

dealer in Florida, the court has specific jurisdiction over Defendant as to Ellert’s

claims. (See id.)

None of the other Plaintiffs’ claims “arise[] out of or relate[] to [Defendant]’s

contacts with” Florida. See Daimler, 571 U.S. at 127. The nonresident Plaintiffs’ do

not allege they became aware of Defendant’s promotion while in Florida, reviewed

the promotional offer while in Florida, made a purchase while in Florida or from a

Florida distributor, and have not alleged any other possible relationship between

Florida, the nonresident Plaintiffs’ claims, and Defendant’s actions. (See Dkt. 1 ¶¶ 63–

66, 72–75, 81–84, 91–94.) As a result, the nonresident Plaintiffs cannot establish that

the court has specific jurisdiction over their claims. See Bristol-Myers Squibb, 582 U.S.

at 265 (holding that there was no specific jurisdiction over a defendant where the

nonresident plaintiffs did not claim to have suffered harm in the state in which they

were suing and all of the conduct giving rise to the nonresidents’ claims occurred

elsewhere); Lewis, 530 F. Supp. 3d at 1226 n.13 (applying Bristol-Myers Squibb and

dismissing “the state law claims brought by the nonresident [p]laintiffs” which arose

“from conduct that took place entirely outside of Florida, the forum in which they

wish[ed] to bring suit”); Lee v. Branch Banking & Tr. Co., No. 18-21876-CIV, 2018 WL

5633995, at *4 (S.D. Fla. Oct. 31, 2018) (dismissing claims of the nonresident named

plaintiffs in putative class because the court lacked specific jurisdiction where the

amended complaint “contain[ed] no allegations connecting” their “claims to

Florida”); Howe v. Samsung Elecs. Am., Inc., No. 1:16CV386-RH/GRJ, 2018 WL

2212982, at *2–5 (N.D. Fla. Jan. 5, 2018) (concluding that, in a proposed class action,

certain named plaintiffs could not sue a company in Florida because the court lacked

personal jurisdiction over the defendant as to those plaintiffs). Accordingly, because

Plaintiffs Adesina, Dombeck, Doukas, and Whitaker allege no connection between

their claims, Defendant, and Florida—a point Plaintiffs do not dispute—the court

lacks specific jurisdiction over Defendant as to the claims brought by the nonresident

Plaintiffs. (See Dkt. 37.)

In response, Plaintiffs cite Farmer v. Walmart, Inc., 729 F. Supp. 3d 1202 (D.

N.M. 2024). There, the defendant argued “that the court lack[ed] personal jurisdiction

over [the d]efendant to the extent the [a]mended [c]omplaint assert[ed] claims on

behalf of unnamed putative class members.” Id. at 1219. The court disagreed,

concluding that “there is no constitutional unfairness in subjecting a defendant to the

class claims of out-of-state plaintiffs in Rule 23 class actions[] as long as a court has

jurisdiction over the class representative’s claims.” Id. at 1221 (quoting Simon v.

Ultimate Fitness Grp., LLC, No. 19 CIV. 890 (CM), 2019 WL 4382204, at *4 (S.D.N.Y.

Aug. 19, 2019)). Farmer is distinguishable as it deals with an entirely separate question.

In Farmer the issue centered around whether the court had “specific personal

jurisdiction over the defendant with respect to the claims of unnamed class members.”

Id. (quoting Lyngaas, 992 F.3d at 434). Here, the question is whether the court has

specific jurisdiction over Defendant with respect to the claims of named plaintiffs,

“real part[ies] in interest.” Id. at 1222 (quoting Murphy v. Aaron’s, Inc., No. 19-CV-

00601-CMA-KLM, 2020 WL 2079188, at *16 (D. Colo. Apr. 30, 2020)); see Lyngaas,

992 F.3d at 433 (“Long-standing precedent shows that courts have routinely exercised

personal jurisdiction over out-of-state defendants in nationwide class actions, and the

personal-jurisdiction analysis has focused on the defendant, the forum, and the named

plaintiff, who is the putative class representative.”); Mussat, 953 F.3d at 448 (“The rules

for class certification support a focus on the named representative for purposes of

personal jurisdiction.”).4 Plaintiffs do not cite a case that disagrees with the

4 Both Lyngaas and Mussat similarly focused on the question of whether a court needed specific

jurisdiction over a defendant as to unnamed plaintiffs in a putative class action. See 992 F.3d at 433;

953 F.3d at 443.

proposition that, in the context of a class action, the court must analyze “the claims

raised by the named plaintiff[s].” Farmer, 729 F. Supp. 3d at 1222 (quoting Lyngaas,

992 F.3d at 435). In fact, Farmer agrees with the proposition that “[t]he named

representatives [in a class action] must be able to demonstrate either general or specific

personal jurisdiction.” 729 F. Supp. 3d at 1222 (quoting Mussat, 953 F.3d at 447).

Instead of dismissing Plaintiffs Adesina, Dombeck, Doukas, and Whitaker,

Plaintiffs ask this court to sever and transfer venue of these Plaintiffs “pursuant to 28

U.S.C. § 1404(a) and/or 1406(a), and Fed. R. Civ. P. 21.” (Dkt. 52 at 1.) The court

declines to do so. See Est. of Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d 1350,

1356 (11th Cir. 2010) (explaining that appellate courts “review for an abuse of

discretion the decision of a district court to sever a case pursuant to Fed. R. Civ. P.

21”); Manley v. Engram, 755 F.2d 1463, 1468 (11th Cir. 1985) (noting that generally, a

“plaintiff, by bringing the suit . . . relinquishe[s the] right to object to venue”);

McCullough v. Royal Caribbean Cruises, Ltd., 268 F. Supp. 3d 1336, 1353 (S.D. Fla. 2017)

(declining the plaintiffs’ request to sever and transfer claims after concluding that the

court lacked jurisdiction over the defendants and instead dismissing those defendants).

Section 1404 permits district courts, “[f]or the convenience of parties and

witnesses, in the interest of justice,” to “transfer any civil action to any other district

or division where it might have been brought or to any district or division to which all

parties have consented.” 28 U.S.C. § 1404(a). Section 1406(a) states that “[t]he district

court of a district in which is filed a case laying venue in the wrong division or district

shall dismiss, or if it be in the interest of justice, transfer such case to any district or

division in which it could have been brought.” 28 U.S.C. § 1406(a). Finally, Federal

Rule of Civil Procedure 21 explains that “[m]isjoinder of parties is not a ground for

dismissing an action” and that “[o]n motion or on its own, the court may at any time,

on just terms, add or drop a party” or “sever any claim against a party.” Fed. R. Civ.

P. 21.

Plaintiffs cite several cases in support of their request which are inapposite.

(Dkt. 52 at 8–17.) For instance, the court recognizes that courts do sever and transfer

claims when those claims would otherwise be time-barred. See Clay v. AIG Aerospace

Ins. Servs., Inc., 61 F. Supp. 3d 1255, 1272 (M.D. Fla. 2014) (stating that “[t]here is no

doubt that the burden on the interstate judicial system will be increased and judicial

economy will be disserved by severance and transfer,” but that “burden pale[d] in

comparison to the prejudice [the p]laintiffs would suffer were the [c]ourt to dismiss”

because otherwise the “[p]laintiffs’ claims for relief would be time-barred by the

applicable statute of limitations”); Harco Nat’l Ins. Co. v. Cascade Aircraft Mgmt., LLC,

No. 1:24-CV-00180-SEG, 2024 WL 6905544, at *7–8 (N.D. Ga. Aug. 19, 2024)

(concluding that it was “in the interest of justice to sever and transfer” claims rather

than to dismiss them since at least some of the claims may otherwise be time-barred);

Lewis v. Abbott Lab’ys, Inc., No. 6:19-CV-909-ORL-31LRH, 2020 WL 631595, at *9–12

(M.D. Fla. Feb. 5, 2020) (severing and transferring a plaintiff’s claims because they

would otherwise be time-barred), report and recommendation adopted by 2020 WL

998717, at *1 (M.D. Fla. Mar. 2, 2020). Plaintiffs do not argue that their claims would

be time-barred and that such concerns should impact the court’s analysis of whether

to sever and transfer. (See Dkt. 52.) Courts also transfer cases when the defendant

asks for the transfer, which is inapplicable here. See Colon v. Moore & Van Allen PLLC,

No. 8:25-CV-1243-WFJ-LSG, 2026 WL 81751, at *1–3 (M.D. Fla. Jan. 12, 2026)

(granting the defendants’ motion to transfer); In re Target Corp. S’holder Class Action

Litig., No. 2:25-CV-00135-KCD-DNF, 2025 WL 3187126, at *5 (M.D. Fla. Nov. 14,

2025) (granting a defendant’s motion to transfer); Beach TV Cable Co., Inc. v. Walsh, No.

5:22-CV-148-AW-MJF, 2023 WL 2731708, at *2–3 (N.D. Fla. Jan. 13, 2023)

(transferring claims of most defendants at their request, except for a defendant who

signed a valid forum-selection clause); Kang Haggerty & Fetbroyt LLC v. Hayes, No. 3:16-

CV-235-J-25JRK, 2017 WL 9938022, at *2 (M.D. Fla. Mar. 22, 2017) (granting the

defendants’ motion to dismiss based on section 1404(a) and concluding that the proper

remedy for such a motion is to transfer the case to the more convenient forum). (See

Dkt. 53.)

B. Standing

Both Defendant and Plaintiffs raise issues pertaining to standing. (See Dkt. 33

at 17–19; Dkt. 37 at 1; Dkt. 43 at 4.) Specifically, Defendant contests whether Plaintiff

Ellert has standing to seek injunctive relief or to sue over other bike models. (See Dkt.

33 at 17–19.) Further, both parties dispute whether Plaintiff Ellert has standing now

that he has received an end cap, and what, if any, other implications exist as a result

of Defendant sending the end cap to Plaintiff Ellert. (Dkt. 37 at 1; Dkt. 43 at 4.) The

court addresses each in turn.

“Federal courts are courts of limited jurisdiction.” Gardner v. Mutz, 962 F.3d

1329, 1336 (11th Cir. 2020) (quotation omitted). Article III of the Constitution limits

federal courts’ jurisdiction to “Cases” and “Controversies.” U.S. Const. art. III, § 2,

cl. 1. To satisfy “the case-or-controversy requirement of Article III,” Plaintiffs must

prove that they have standing to pursue each of the claims asserted in the complaint.

See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Proving standing requires

Plaintiffs to establish that they “(1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). “The

party invoking federal jurisdiction bears the burden of establishing these elements.”

Lujan, 504 U.S. at 561. “The proof required for a plaintiff to establish standing varies

depending on the stage of litigation.” Green-Cooper v. Brinker Int’l, Inc., 73 F.4th 883,

891 (11th Cir. 2023); see Lujan, 504 U.S. at 561 (“Since [the standing elements] are not

mere pleading requirements but rather an indispensable part of the plaintiff’s case, each

element must be supported in the same way as any other matter on which the plaintiff

bears the burden of proof, i.e., with the manner and degree of evidence required at the

successive stages of the litigation.”). “At the pleading stage, general factual allegations

of injury resulting from the defendant’s conduct may suffice.” Lujan, 504 U.S. at 561.

Defendant argues that Plaintiff Ellert lacks standing to both seek injunctive relief

and sue over bike models he never bought, (Dkt. 33 at 17–19), to which Plaintiffs do

not respond, (see Dkt. 37). See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th

Cir. 2001) (deeming claim abandoned where argument was not presented in initial

response); Wilf v. Bd. of Regents of the Univ. Sys. of Ga., No. 1:09-CV-01877-RLV-GGB,

2012 WL 12888680, at *4 (N.D. Ga. Oct. 15, 2012) (noting that the plaintiff had “not

addressed [the d]efendants’ standing argument at all” and that “failure to respond to

arguments relating to a claim in the plaintiff’s initial response to the motion constitutes

abandonment of the claim,” and citing cases), report and recommendation adopted by 2013

WL 12156401, at *1 (N.D. Ga. Feb. 21, 2013), aff’d, 544 F. App’x 906 (11th Cir. 2013).

Accordingly, the court treats Plaintiffs’ claims for injunctive relief and his claims

regarding any bikes other than the 2024 Yamaha Wabash RT that Plaintiff Ellert

alleges he bought, (see Dkt. 1 at 16–17), as abandoned. See Jones v. Bank of Am., N.A.,

564 F. App’x 432, 434 (11th Cir. 2014) (“[W]hen a party fails to respond to an

argument or otherwise address a claim, the [c]ourt deems such argument or claim

abandoned.” (quotation omitted)); Barnes v. AstraZeneca Pharms. LP, 253 F. Supp. 3d

1168, 1171 (N.D. Ga. 2017) (“When an argument is raised upon a motion to dismiss

that a claim is subject to dismissal, and the non-moving party fails to respond to such

an argument, such claims are deemed abandoned and subject to dismissal.” (alteration

adopted and quotation omitted)); A1 Procurement, LLC v. Hendry Corp., No. 11-23582-

CIV, 2012 WL 6214546, at *3 (S.D. Fla. Dec. 13, 2012) (dismissing claims as

abandoned where the plaintiff failed to respond to the defendants’ arguments

concerning the dismissal of those claims).

As to Defendant sending Plaintiff Ellert an end cap, the parties dispute whether

this results in Plaintiff Ellert lacking standing to pursue his claims, or instead whether

Defendant’s outside the record conduct means that Plaintiff Ellert is “entitled to a

judgment against [Defendant] for his claims and attorneys’ fees.” (Dkt. 37 at 1 n.1; see

Dkt. 43.) The court begins by addressing the latter argument.

Without citation to authority, Plaintiffs “contend that this [c]ourt will likely

need to address whether [Defendant] has confessed judgment as to Plaintiff Ellert’s

claims.” (Dkt. 37 at 17.) Specifically, “Plaintiffs contend [that Defendant’s] conduct

is tantamount to a confession of [j]udgment on the Florida claims,” entitling Plaintiff

Ellert to “attorneys’ fees and costs.” (Id.)5 The court disagrees. Plaintiffs cite various

insurance-related cases to support their argument. (Dkt. 37 at 1 n.1. (citing Ivey v.

Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000); Wollard v. Lloyd’s and Cos. of Lloyd’s, 439

So. 2d 217 (Fla. 1983); Clifton v. United Cas. Ins. Co. of Am., 31 So. 3d 826 (Fla. Dist.

Ct. App. 2010).) However, these cases are based on a since-repealed statute, Fla. Stat.

§ 627.428, which previously entitled a plaintiff to attorney fees “[u]pon the rendition

of a judgment or decree by any of the courts of this state against an insurer and in favor

of an insured.” See Dudley v. Am. Zurich Ins. Co., No. 2:24-CV-574-SPC-KCD, 2025

WL 755289, at *1 n.2 (M.D. Fla. Mar. 10, 2025) (“Section 627.428 no longer allows

attorney’s fees in suits arising under residential or commercial property insurance

policies.”); Boyle & Boyle, Inc. v. Allied Ins. Co. of Am., No. 2:23-CV-884-SPC-KCD,

2024 WL 4751111, at *2 n.1 (M.D. Fla. Nov. 12, 2024) (“This statute has since been

5 Further, to the extent Plaintiffs ask this court to find that Defendant confessed judgment, the court

declines to do so as Plaintiffs have not properly moved for such relief. See Markland v. Insys

Therapeutics, Inc., 270 F. Supp. 3d 1318, 1319 n.1 (M.D. Fla. 2017) (“[A] request for affirmative relief

. . . is not properly made when simply included in a response to a motion.”), aff’d, 758 F. App’x 777

(11th Cir. 2018).

amended and no longer allows attorney’s fees in suits arising under residential or

commercial property insurance policies.”), appeal dismissed, No. 24-13897-DD, 2025

WL 3491325 (11th Cir. June 16, 2025).

Nevertheless, the court agrees with Plaintiffs that Plaintiff Ellert still has

standing despite receiving a battery end cap from Defendant. (Dkt. 37 at 1 n.1

(explaining that “eight days after filing the instant motion with this

[c]ourt, . . . Yamaha, through its counsel, shipped Plaintiff Ellert’s counsel a battery

‘end cap’ with a letter asserting that by receiving ‘the battery end cap, Mr. Ellert has

now received everything to which he claims he is entitled under the promotion . . . He

thus lacks standing to continue pursuing any claims in this action.’”) “In general, a

putative class action becomes moot if no named plaintiff with a live claim remains at

the time of the district court’s class certification decision.” Sos v. State Farm Mut. Auto.

Ins. Co., No. 21-11769, 2023 WL 5608014, at *9 (11th Cir. Aug. 30, 2023).

“[H]owever, the Supreme Court has crafted several exceptions to the general rule that

pre-certification mootness of the named plaintiff’s claims divests the federal courts of

jurisdiction over the entire action.” Id. “If one of these exceptions applies, class

certification ‘relates back’ to the filing of the complaint, giving the named plaintiff

standing to pursue certification despite the intervening mootness of his individual

claim.” Id. (citing cases). Applicable here is the picking off exception, which “cures

mootness when a defendant resolves the named plaintiff’s claims before class

certification—by, for instance, paying the named plaintiff’s individual claim.” Id. at

10; see Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 706 (11th Cir. 2014) (“In those cases

in which it is financially feasible to pay off successive named plaintiffs, the defendants

would have the option to preclude a viable class action from ever reaching the

certification stage. This result is precisely what the relation back

doctrine . . . condemns.” (alteration adopted and quotation omitted)).

Defendant disagrees, instead asserting that Plaintiff Ellert’s receipt of the end

cap “raises a question of whether he will be able to demonstrate standing in this case.”

(Dkt. 43 at 4.) Defendant states that “[a] plaintiff must have Article III standing at all

stages of litigation.” (Id. (alteration adopted and quotation omitted).) Even so, as

explained above, there are certain exceptions to that rule, specifically that an “offer of

full relief to the named plaintiff does not moot a class action.” Stein, 772 F.3d at 707.

Defendant also states that “multiple courts have held that a customer lacks Article III

standing to sue a retailer if the company already provided the customer with full

relief.” (Id. (quotation omitted).) Yet, in support, Defendant cites two cases discussing

money-back guarantees, which are not relevant here. (See id. (citing Dawkins v. Publix

Super Mkts., Inc., 796 F. Supp. 3d 1192, 1197 (S.D. Fla. 2025); Fields v. Walmart Inc.,

No. 8:23-CV-2057-TPB-UAM, 2024 WL 1984586, at *2 (M.D. Fla. Apr. 8, 2024); see

also Dkt. 1.) Given the applicable picking off exception, the court finds that Plaintiff

Ellert retains “standing to pursue certification despite the intervening mootness of his

individual claim.” See Sos, 2023 WL 5608014, at *9.

C. Failure to State a Claim

Defendant makes several arguments against Plaintiff Ellert’s remaining claims.

(Dkt. 33 at 13–17.) The court begins by addressing Defendant’s arguments that

Plaintiff Ellert’s claims for breach of contract, breach of the implied covenant of good

faith and fair dealing, and unjust enrichment are impermissibly duplicative. (Dkt. 33

at 15–17.) The court then turns to whether Plaintiff Ellert has alleged actual damages

sufficient to state a breach of contract claim, as well as a claim under the FDUTPA.

(Id. at 13–15.)

“Florida law does not generally permit a party to pursue a cause of action on an

express contract at the same time as he pursues a cause of action for unjust

enrichment.” Shibata v. Lim, 133 F. Supp. 2d 1311, 1316 (M.D. Fla. 2000) (collecting

cases); see Kuhns v. Scottrade, Inc., 868 F.3d 711, 718 (8th Cir. 2017) (noting that under

Florida law “a plaintiff cannot recover under an equitable theory such as unjust

enrichment when an express agreement covers the same subject matter”); State Farm

Mut. Auto. Ins. Co. v. Physicians Inj. Care Ctr., Inc., 427 F. App’x 714, 722 (11th Cir.

2011) (“It is generally true that equitable remedies are not available under Florida law

when adequate legal remedies exist.”), rev’d in part sub nom. State Farm Mut. Auto. Ins.

Co. v. Williams, 824 F.3d 1311 (11th Cir. 2014). Both federal and Florida law, however,

permit pleading in the alternative. See Fed. R. Civ. P. 8(a)(3) (permitting a pleading

to “include relief in the alternative or different types of relief”); ThunderWave, Inc. v.

Carnival Corp., 954 F. Supp. 1562, 1566 (S.D. Fla. 1997) (concluding that a party can

alternatively allege recovery under an express contract and seek equitable relief under

the theory of unjust enrichment). Further, “it is not upon the allegation of the

existence of a contract, but upon a showing that an express contract exists that the

unjust enrichment count fails” and “[u]ntil an express contract is proven, a motion to

dismiss a claim for unjust enrichment on these grounds is premature.” Martorella v.

Deutsche Bank Nat. Tr. Co., 931 F. Supp. 2d 1218, 1228 (S.D. Fla. 2013); see State Farm,

427 F. App’x at 722 (“It is only upon a showing that an express contract exists between

the parties that the unjust enrichment count fails.” (alterations adopted and ellipses

and quotations omitted)); Degutis v. Fin. Freedom, LLC, 978 F. Supp. 2d 1243, 1265

(M.D. Fla. 2013) (“Upon a showing that an express contract exists, an unjust

enrichment count will fail.”).6

“To the extent that [Plaintiff Ellert] pleads unjust enrichment as an alternative

to his breach of contract claim, such a claim should not be dismissed at this time.” See

Shibata, 133 F. Supp. 2d at 1320; see also State Farm, 427 F. App’x at 722 (concluding

that, to the extent the plaintiff “did have adequate legal remedies, those remedies did

not bar its unjust enrichment claim”); Morgan v. Ace Am. Ins. Co., No. 3:16-CV-705-J-

39MCR, 2018 WL 11354496, at *2 (M.D. Fla. Sept. 28, 2018) (“At this stage in the

case, it is unclear whether a contract governs the parties interactions to the point that

[the p]laintiff cannot recover for unjust enrichment.”); Martorella, 931 F. Supp. 2d at

6 In support of its argument that Plaintiffs claim for unjust enrichment must be dismissed, Defendant

cites Degutis v. Fin. Freedom, LLC, 978 F. Supp. 2d 1243 (M.D. Fla. 2013), Magma Glob., LLC v. NHT

SP, LLC, No. 8:23-CV-2076-SDM-AEP, 2023 WL 8357737 (M.D. Fla. Dec. 1, 2023), and Boddison v.

Gen. Motors LLC, No. 8:20-CV-2139-WFJ-AEP, 2021 WL 2435388 (M.D. Fla. Mar. 19, 2021).

However, those cases are distinguishable because, there, “the parties agree[d] that an express contract

existed.” Magma, 2023 WL 8357737, at *2; see Degutis, 978 F. Supp. 2d at 1266 (“In this case, it is

undisputed . . . that an express mortgage contracts exists . . . .”); Boddison, 2021 WL 2435388, at *8

(stating that the defendant argued that “unjust enrichment as a cause of action [wa]s not available

because the limited new vehicle warranties between the parties are express contracts”). Here,

Defendant has not agreed that an express contract exists. (See Dkt. 33 at 16.)

1228 (“Until an express contract is proven, a motion to dismiss a claim for unjust

enrichment on these grounds is premature.”); Supermedia LLC v. Kantaras &

Andreopoulos, No. 8:11-CV-02328-T-17, 2012 WL 895444, at *4 (M.D. Fla. Mar. 15,

2012) (“[I]t is well-settled in this Circuit that breach of contract and unjust enrichment

may be pled in the alternative.” (quotation omitted)); Donnelly v. Cir. City Stores, Inc.,

No. 506-CV-387-OC-10GRJ, 2007 WL 896337, at *3 (M.D. Fla. Mar. 22, 2007)

(“[A]lternate pleading allows for a plaintiff’s case to proceed in the face of uncertainty

as to the existence of a contract or, perhaps, uncertainty as to whether the particular

issue at hand falls within the ambit of a contract that otherwise exists between the

parties.”). (See Dkt. 37 at 9–10 (“Plaintiffs plead their breach of implied covenant and

unjust enrichment claims in the alternative.”).)7

“However, a breach of the implied covenant [of good faith and fair dealing] may

be dismissed as redundant where the conduct allegedly violating the implied covenant

is duplicative of the companion cause of action alleging breach of contract.” Shibata,

133 F. Supp. 2d at 1319 (collecting cases); see Trief v. Am. Gen. Life Ins. Co., 444 F. Supp.

7 Defendant also argues that “a claim for unjust enrichment cannot be ‘based on the same alleged

wrong that underlies his FDUTPA claim.’” (Dkt. 33 at 16 (alteration adopted and quoting Pop v.

LuliFama.com LLC, No. 8:22-CV-2698-VMC-JSS, 2024 WL 1194485, at *7 (M.D. Fla. Mar. 20, 2024),

aff’d, 145 F.4th 1285 (11th Cir. 2025)).) However, the quote in its entirety states that “the unjust

enrichment claim is based on the same wrong that underlies his FDUTPA claim in that it is based

solely on the unjust nature of the [defendants’] alleged failure to disclose an advertising relationship”

and that this was impermissible as “a claim of unjust enrichment may not be predicated on a wrong

committed by a defendant.” Pop, 2024 WL 1194485, at *7. In fact, elsewhere in the opinion, the

court seems to disagree with the notion that an unjust enrichment claim cannot be based on the same

alleged wrong that underlies an FDUTPA claim. See id. at 6 n.1 (recognizing that “plaintiffs have

been permitted to bring unjust enrichment claims in the alternative provided that an express contract

did not exist between the parties” and dismissing the unjust enrichment claim on other grounds).

2d 1268, 1270 (S.D. Fla. 2006) (dismissing a claim for a breach of an implied covenant

of good faith and fair dealing because it amounted “to nothing more than a general

allegation for breach of contract” and was therefore duplicative); Griffin v. Motorsport

Games Inc., No. 24-CV-21929, 2024 WL 4564330, at *6 (S.D. Fla. Oct. 24, 2024)

(“[C]ourts have found that a claim for breach of an implied covenant of good faith and

fair dealing is invalid when it is based on the same facts as the breach of contract.”);

Enola Contracting Servs., Inc. v. URS Grp., Inc., No. 5:08CV2-RS-EMT, 2008 WL

1844612, at *3 (N.D. Fla. Apr. 23, 2008) (“A cause of action based on the covenant

cannot be maintained . . . where the allegations underlying the claim for breach of the

implied covenant are duplicative of those which support the claim for breach of

contract.”).

“Here, Plaintiff[s’] breach of contract and breach of implied duty of good faith

and fair dealing claims both arise from the same allegations.” See Grant v. Centerstate

Bank, No. 8:20-CV-1920-MSS-AAS, 2021 WL 9594009, at *3 (M.D. Fla. July 6,

2021); Bradman v. Mental Health Network, Inc., No. 08-61376-CIV-MARRA, 2008 WL

5110525, at *3 (S.D. Fla. Dec. 2, 2008) (concluding that because a count for breach of

the implied covenant of good faith and fair dealing “merely incorporate[d] by reference

all the allegations of the [c]omplaint,” it “duplicate[d] the allegations supporting the

breach of contract claim” making it “impossible for the [c]ourt to distinguish between

the[] two claims”). (See Dkt. 1 at 43 (“Plaintiffs reallege and incorporate by reference

the preceding allegations at paragraphs 1 – 116 as though fully set forth herein.”); id.

at 44 (“Plaintiffs reallege and incorporate by reference the preceding allegations at

paragraphs 1 – 116 as though fully set forth herein.”).) Accordingly, count VII is

dismissed without prejudice. See Harrison v. Digit. Health Plan, 183 F.3d 1235, 1237 n.1

(11th Cir. 1999) (affirming a district court’s order dismissing duplicative claims);

Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 167 (11th Cir. 1997) (suggesting

that dismissal is the appropriate method for a duplicative cause of action); Fikes v. City

of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996) (discussing the inherent authority

of the district court to narrow issues in a case); Regency of Palm Beach, Inc. v. QBE Ins.

Corp., No. 08-81442-CIV, 2009 WL 2729954, at *5 (S.D. Fla. Aug. 25, 2009)

(cautioning that if the plaintiff “attempts to re-plead this count, it must identify the

express contractual provision allegedly breached and must take care not to duplicate

the allegations supporting the breach of contract claim”).

Plaintiffs contend that their claims “extend beyond the specific contractual

terms.” (Dkt. 37 at 11.) Still, “a party can maintain a claim for breach of the implied

duty only if it is based on allegations different than those underlying the accompanying

breach of contract claim.” Shibata, 133 F. Supp. 2d at 1319. Here, the allegations

Plaintiffs identify are “the same alleged acts” underlying the breach of contract claim,

making it “superfluous as no additional claim is actually stated.”8 See id.; see also ACG

S. Ins. Agency, LLC v. Safeco Ins. Co., No. 8:19-CV-528-T-36AAS, 2019 WL 8273657,

8 Plaintiffs note that Defendant’s arguments ignore certain “allegations supporting an implied

covenant of good faith and fair dealing claim.” (Dkt. 37 at 11–12 (quoting Dkt. 1 ¶¶ 182–185).)

However, the allegations to which Plaintiffs point are not “separate factual allegations.” Longo v.

Campus Advantage, Inc., 588 F. Supp. 3d 1286, 1297 (M.D. Fla. 2022). Rather, they are “legal

conclusions” that “must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

at *8–9 (M.D. Fla. Dec. 16, 2019) (“Accordingly, because [the plaintiff’s] claim for

breach of the implied covenant of good faith and fair dealing is based on the same

allegations underlying [the plaintiff’s] breach of contract claim and therefore

redundant, the claim is due to be dismissed.”); Int’l Brokerage & Surplus Lines, Inc. v.

Liberty Mut. Ins. Cos., No. 8:06-CV-104T30MSS, 2007 WL 220172, at *7 (M.D. Fla.

Jan. 26, 2007) (granting motion to dismiss claim for breach of the implied covenant of

good faith and fair dealing without prejudice because it did not differ from the

plaintiff’s breach of contract count).

Next, Defendant argues that Plaintiff Ellert did not suffer any cognizable injury

because he admits to receiving a free second battery. (Dkt. 33 at 13–15.) Plaintiff

Ellert brings claims under the FDUTPA as well as for breach of contract. (Dkt. 1 at

31–33, 43–44.) An element of each of these claims is damages. See Marrache v. Bacardi

U.S.A., Inc., 17 F.4th 1084, 1097 (11th Cir. 2021) (“The three elements of a consumer

claim under [the] FDUTPA are: (1) a deceptive act or unfair practice[,] (2) causation[,]

and (3) actual damages.” (quotation omitted)); Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1272 (11th Cir. 2009) (“For a breach of contract claim, Florida law requires the

plaintiff to plead and establish: (1) the existence of a contract[,] (2) a material breach

of that contract[,] and (3) damages resulting from the breach.”); Grant, 2021 WL

9594009, at *2 (“A claim for breach of contract under Florida law requires three

elements: (1) the existence of a valid contract[,] (2) a material breach[,] and (3)

damages.”).

Actual damages under the FDUTPA “are measured according to 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.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 986 (11th

Cir. 2016) (quotation omitted). “A plaintiff, however, cannot state a cause of action

under [the] FDUTPA if the consumer fails to plead that they suffered actual damages.”

Marrache, 17 F.4th at 1098. Further, “the members of a putative class who experienced

no actual loss have no claim for damages under [the] FDUTPA.” Id. (alteration

adopted and quotation omitted). The FDUTPA “does not provide for the recovery of

nominal damages, speculative losses, or compensation for subjective feelings of

disappointment.” Id. (quotation omitted).

Here, Defendant “advertised to consumers that they would receive a ‘[f]ree

[seco]nd [b]attery’ – consisting of a ‘free second battery and battery end cap.’” (Dkt.

1 at 1.) See Kurimski v. Shell Oil Co., No. 21-80727-CV, 2022 WL 2913742, at *13 (S.D.

Fla. June 30, 2022) (finding that damage was not adequately pled under the FDUTPA

because “[w]hat was promised was a tank of gas at the credit price, and what was

delivered was a tank of gas at the credit price”). At the time the complaint was filed,

Plaintiff Ellert alleged that, though he had received the battery, he had “not received

his battery end cap, which is necessary to utilize the battery in the [e]-[b]ike.” (Dkt. 1

at 17.) See Marrache, 17 F.4th at 1099 (concluding that the FDUTPA claims failed to

state a claim for actual damages because the plaintiff did not allege that he was unable

to use the product). Accordingly, the end cap allegedly has more than nominal

value—together the “second battery and battery end cap” were valued at $1,400. (Dkt.

1 at 4.) And no matter how much the end cap alone is valued at, it being necessary to

utilize the battery in the e-bike “materially affects the value of the battery he received

as part of the promotional offer.” (Dkt. 33 at 15.) Thus, Plaintiff Ellert did not get

“what he bargained for.” (Dkt. 33 at 14 (alteration adopted and quotation omitted).)9

Plaintiff Ellert further asserts that “he inquired with [Defendant] about rectifying this,”

but “he was answered with a pre-recorded message and then his calls were

disconnected.” (Dkt. 1 at 17.) See Marrache, 17 F.4th at 1099 (noting that the plaintiff

did not allege that he “unsuccessfully sought a refund for or complained” of the

product to the defendants). Thus, at this stage, Plaintiff Ellert adequately alleges actual

damages. See Martorella, 931 F. Supp. 2d at 1225 (denying a motion to dismiss a

FDUTPA claim because the plaintiff adequately alleged actual damages as the

difference between “the premiums under her homeowners’ policy” and “the payment

which [the d]efendants allegedly assessed against her wrongfully”).

CONCLUSION

Accordingly:

1. Defendant’s motion to dismiss (Dkt. 33) is GRANTED in part and DENIED

in part as follows:

a. Counts II–V and VII are DISMISSED without prejudice.

9 Defendant disagrees because the battery end cap is “a small piece of plastic that is included with the

original bike and battery, and which can be used with the second battery as well.” (Dkt. 33 at 14–15.)

Even if that is the case, in deciding a motion to dismiss for failure to state a claim, the court “accept[s]

the allegations in the complaint as true and construe[s] them in the light most favorable to the

plaintiff.” Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). Accordingly, at this stage, it is not

necessary that Plaintiff Ellert “explain[ t]his vague assertion.” (Dkt. 33 at 15.)

b. The motion to dismiss is otherwise denied.

2. Plaintiffs’ motion (Dkt. 52) is DENIED.

3. Plaintiffs Tosin Adesina, Aaron Dombeck, George Doukas, and Chad

Whitaker’s claims against Defendant are DISMISSED without prejudice.

4. The Clerk 1s DIRECTED to terminate Adesina, Dombeck, Doukas, and

Whitaker as parties in this case.

5. On or before May 21, 2026, Plaintiffs may file an amended complaint that fully

complies with this order.

ORDERED in Orlando, Florida, on April 29, 2026.

JUFIE S. SNEED

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

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