# Ellert

> District Court, M.D. Florida · April 29, 2026

URL: https://www.frixlaw.com/law-library/cases/11367630

## Case

- **Full name:** CHARLES ELLERT, TOSIN ADESINA, AARON DOMBECK, GEORGE DOUKAS, and CHAD WHITAKER v. YAMAHA MOTOR CORPORATION, U.S.A., INC.
- **Court:** District Court, M.D. Florida
- **Decided:** April 29, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11367630

## Opinion text

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

-29 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11367630. Public record. Not legal advice.