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Filing # 54840630 E-Filed 04/10/2017 10:38:27 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
AVENTURA MARINA ONE CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff,
v. Case No. 16-024917 CA 01
ALLIED TUBE & CONDUIT CORPORATION,
TYCO INTERNATIONAL PLC, F/K/A TYCO
INTERNATIONAL, LTD, TYCO FIRE
PRODUCTS, LP, LUBRIZOL ADVANCED
MATERIALS, INC. F/K/A NOVEON, INC.
THE LUBRIZOL CORPORATION, GEORG
FISCHEL HARVEL, LLC, AND VICTAULIC
COMPANY,
Defendants.
/
VICTAULIC COMPANY’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Pursuant to Florida Rules of Civil Procedure Rule 1.140(b)(6), Defendant, Victaulic
Company (“Victaulic”), moves to dismiss Plaintiff, Aventura Marina One Condominium
Association, Inc.’s (“Plaintiff’ or “Association”), Complaint, and in support thereof states as
follows:
I, SUMMARY OF ARGUMENT
Plaintiff brings this lawsuit against seven manufacturers of fire sprinkler products to
recover the future costs of replacing the fire sprinkler system at the Aventura Marina One
Condominium. The Complaint alleges that CPVC fire sprinkler pipe is defective because it
“breaks down and ultimately fails” when exposed to certain materials that Plaintiff characterizes
as “common construction products.” Plaintiff attempts to assert causes of action against
Victaulic for Negligence, Strict Liability, Breach of Statutory Warranty and violation of
1964922.1 04/10/2017Florida’s Deceptive and Unfair Trade Practices Act (““FDUTPA”). Plaintiff's claims do not state
a cause of action against Victaulic and should be dismissed with prejudice for the following
reasons:
No Claim for Negligence or Strict Liability:
Plaintiffs claims for negligence and strict liability fail for numerous reasons
First, the claims are barred by the economic loss rule, which prevents product liability
plaintiffs from recovering economic damages in tort when they have not sustained any property
damage or personal injury. To the extent Plaintiff asserts claims arising from alleged damages to
the personal property of the building’s individual unit owners, those claims fail because Plaintiff
lacks standing to sue for those damages?.
Second, the negligence and strict liability claims also must be dismissed because they
each lack the supporting facts and specificity required by Florida law.
Third, they also improperly co-mingle the separate causes of action for failure to warn,
(while nonetheless failing to state a claim for failure to warn).
No Claim for Statutory Implied Warranties:
Section 718.203 of the Florida Statutes imposes a statutory implied warranty on
contractors, subcontractors, and suppliers — but does not impose a similar duty against
manufacturers, like Victaulic. Victaulic is not alleged to be a contractor, subcontractor, or
supplier of products to the Aventura Marina One Condominium. This claim, therefore, must be
dismissed as a matter of law.
+ Victaulic understands, however, that the Court is not inclined to dismiss tort claims in the pending CPVC lawsuits
based on the economic loss rule at the motion to dismiss stage and will revisit this issue at the summary judgment
stage. Victaulic reserves its right to reassert this issue in a motion for summary judgment.
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1964922.1 04/10/2017No Cognizable FDUTPA Claim:
Plaintiffs FDUTPA claim should be dismissed because: (1) Plaintiff is not a “consumer”
under the statute; (2) the Complaint does not identify a single unfair or deceptive act or practice
committed by Victaulic; and (3) the damages Plaintiff seeks are not recoverable under the
statute.
IL LEGAL STANDARD
To state a cause of action under Florida law, a complaint “must allege sufficient ultimate
facts to show that the pleader is entitled to relief.” Goodall v. Whispering Woods Ctr., LLC, 990
So.2d 695, 697 (Fla. 4th DCA 2008). In evaluating a pleading on a motion to dismiss, “[a] court
may not go beyond the four comers of the complaint and must accept the facts alleged therein
and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader.”
Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001). Where, as here, it is
clear as a matter of law that the plaintiff is not entitled to relief even if the facts alleged were
true, a motion to dismiss should be granted. WH Smith, PLC v. Benages & Assocs., Inc., 51 So.
3d 577, 583 (Fla. 3d DCA 2010); Clayton v. State Farm Mut. Auto. Ins. Co., 729 So. 2d 1012,
1013-14 (Fla. 3d DCA 1999) (affirming trial court decision to grant defendant’s motion to
dismiss based on economic loss doctrine).
Ti. ARGUMENT
A, Plaintiff’s Tort Claims Against Victaulic Must Be Dismissed.
i. Plaintiff's Tort Claims Are Barred by the Economic Loss Rule.
Plaintiff's tort claims against Victaulic are barred by the economic loss rule because they
seek to recover economic loss absent any alleged personal injury or damage to property other
than the sprinkler system and the building into which it was incorporated. See Tiara Condo.
1964922.1 04/10/2017Ass'n, Inc. v. Marsh & McLennan Cos., 110 So.3d 399, 401 & 405 (Fla. 2013); Casa Clara
Condo. Ass'n v. Charley Toppino & Sons, Inc., 620 So.2d 1244, 1247 (Fla. 1993)?
2. Plaintiff Does Not Have Standing to Sue for Alleged Damages to Any Unit
Qwner’s Personal Property.
Plaintiff cannot get around the economic loss rule by alleging that the piping not only
damaged itself and the surrounding building, but also unidentified “personal property” of unit
owners. See Compl. ff 32; 37. Plaintiff lacks standing to sue for any alleged damage to the
personal property of individual unit owners. See Fla. Stat. Ann. § 718.1113
3. Plaintiff Fails to Properly Plead a Negligence Claim.
In addition, Plaintiff's negligence claim fails to allege any facts showing causation, an
indispensable element of a negligence claim. See Williams v. Davis, 974 So. 2d 1052, 1056 (Fla.
2007). Specifically, Plaintiff fails to allege how Victaulic’s design, manufacture, distribution, or
sale of CPVC piping caused the claimed “damages.” Plaintiff does not allege that any Victaulic
CPVC pipe leaked, let alone caused it damages. Instead, Plaintiff only speculatively alleges that
CPVC pipes in general, may in the future suffer environmental stress cracking after being
exposed to antimicrobial coatings and other materials that Plaintiff characterizes as “common
construction materials.” A cause of action may not rest on the possibility that a party may incur
damages at some unspecified point in time in the future. Parrish v. City of Orlando, 53 So.3d
1199, 1202 (Fla. 5th DCA 2011); see also Petrulli v. Approved Dry Wall Constr., 284 So.2d 27,
28 (Fla. 3d DCA 1973). These pleading deficiencies are inconsistent with the Florida Rules of
2 As mentioned in Footnote No. 1, Victaulic understands that the Court is not inclined to dismiss tort claims in the
pending CPVC lawsuits based on the economic loss rule at the motion to dismiss stage, and thus, Victaulic
reserves its right to submit further argument on this issue at the summary judgment stage.
3 As mentioned in Footnote No. 1, Victaulic understands that the Court is not inclined to dismiss tort claims in the
pending CPVC lawsuits based on the economic loss rule at the motion to dismiss stage, and thus, Victaulic
reserves its right to submit further argument on this issue at the summary judgment stage.
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1964922.1 04/10/2017Civil Procedure, which require that a pleading “state a cause of action...and shall contain...(2) a
short and plain statement of the ultimate facts showing that the pleader is entitled to relief...”
Fla. R. Civ. Pro. 1.110(b) (emphasis added); see also Doyle v. Flex, 210 So. 2d 493, 494 (Fla. 4th
DCA 1968) (holding that a complaint must contain ultimate facts supporting each element of
each cause of action); see also Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982)
(Pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.)
Even if Plaintiff had properly pled its negligence claim, it is still defective because it co-
mingles multiple causes of action in contravention of Florida law. “All averments of claim or
defense shall be made in consecutively numbered paragraphs, the contents of each of which shall
be limited as far as practicable to a statement of a single set of circumstances. . . . Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be
stated in a separate count or defense when a separation facilitates the clear presentation of the
matter set forth.” Fla. R. Civ. P. 1.110(f); also see Evans v. Florida Farm Bureau Cas. Ins. Co.,
384 So. 2d 959, 961 (Fla. Ist DCA 1980); see also K.R. Exchange Services, Inc. v. Fuerst,
Humphrey, Ittleman, PL, et al., 48 So.3d 889 (Fla. 3d DCA 2010); Pratus v. City of Naples, 807
So.2d 795, 797 (Fla. 2d DCA 2002); see also Aspsoft, Inc. v. WebClay, 983 So.2d 761, 768 (Fla
5th DCA 2008) (holding that plaintiffs complaint set forth defective claims by “impermissibly
comingling separate and distinct claims” in a single count); Dubus v. McArthur, 682 So.2d 1246,
1247 (Fla. 1st DCA 1996) (stating that the “task of the trial court was made more difficult
because the appellants’ amended complaint improperly attempts to state in a single count
separate causes of action”)
In Paragraphs 216 and 217 of its negligence claim, Plaintiff attempts to plead a cause of
action for failure to warn. Compl. ff] 216 & 217. Failure to warn, however, is a products
1964922.1 04/10/2017liability cause of action that is distinct from negligent design/manufacture, and should be pled in
a separate count. Rodriguez v. New Holland N. Am., Inc., 767 So. 2d 543, 544 (Fla. 3d DCA
2000); see also Triana v. FI-Shock, Inc., 763 So. 2d 454, 457 (Fla. 3d DCA 2000). The Florida
Supreme Court Standard Jury Instructions include separate instructions for Negligent Failure to
Warn and Strict Liability Failure to Warn. See Fla. Standard Jury Instructions §§ 403.8; 403.10.
Finally, even if properly pled, Plaintiff's negligent failure to warn claim fails under the
facts alleged because under Florida law, the duty to warn of a latent defect is not invoked unless
the product at issue is “inherently dangerous.” Zampa Drug Co. v. Wait, 103 So. 2d 603 (Fla.
1958). The fire sprinkler system here is not “inherently dangerous” under Florida law.
In Tampa Drug Co. v. Wait, the Florida Supreme Court stated that “[w]hen a distributor
of an inherently dangerous commodity places it in the channels of trade, then by the very nature
of his business he assumes the duty of conveying to those who might use the product a fair and
adequate warning of its dangerous potentialities .. . .” Jd. at 607. In imposing this duty to warn
of an inherently dangerous product, the Court specifically excluded “liability resulting from a
defect in an article that is ordinarily harmless.” /d. at 608. The Court then defined an inherently
dangerous product as “a commodity burdened with a latent danger which derives from the very
nature of the article itself.” /d. at 608. “The types of products placed in this limited category by
the Florida courts are highly toxic materials . . . second hand guns . . . and drugs.” Dayton Tire &
Rubber Co. v. Davis, 348 So. 2d 575, 582 (Fla. 1st DCA 1977) (overruled on other grounds)
(holding that an automobile tire is not an inherently dangerous product as a matter of law); see
also Byrnes v. Honda Motor Co., 887 F. Supp. 279 (S.D. Fla. 1994) (“Under Florida law, the
duty to warn users of all potential dangers attaches only upon the sale and distribution of a
product that is ‘inherently dangerous.””).
1964922.1 04/10/2017Accepting Plaintiffs allegations as true for purposes of this Motion, Victaulic’s CPVC
fire sprinkler pipe does not qualify as an inherently dangerous product. Indeed, no Florida case
has held that CPVC piping is an inherently dangerous product. Accordingly, as a matter of well-
established Florida law, Victaulic could not have a duty to warn of any purported latent defect
associated with its products, including incompatibility with other products, and such claim
should be dismissed
4. Plaintiff Fails to Plead a Proper Strict Liability Claim.
Plaintiff similarly fails to plead a claim for strict liability. “In order to hold a
manufacturer liable on a theory of strict liability in tort, the user must establish the
manufacturer’s relationship to the product in question, the defect and unreasonably dangerous
condition of the product, and the existence of the proximate causal connection between such
condition and the user’s injuries or damages.” West v. Caterpillar Tractor Co., 336 So.2d 80, 86-
7 (Fla. 1976).
Rice v. Walker, 359 So.2d 891 (Fla. 3d DCA 1978) is instructive. In that case, the Third
District Court of Appeal affirmed the dismissal of a complaint that failed to allege sufficient
facts showing a product defect. Without pointing to any specific defects, the plaintiff in that case
broadly asserted that the components of the product “constituted dangerous instrumentalities in
that they were not so constructed as to prevent” injury to the user. The Third District held that
“while the plaintiff alleged various components including the hand-held control unit or
mechanism were unsafe, the facts constituting such defects were not stated nor did the plaintiff
allege facts showing how, as made, any such components were defective or dangerous to the
user, or how they reasonably could or should have been made safe.” /d. at 892; see also Cassisi
1964922.1 04/10/2017vy. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981); Clark v. Boeing Co., 395 So.2d 1226 (Fla.
3d DCA 1981).
Like the vague assertion in Rice that the component parts “constituted dangerous
instrumentalities,” in this case, Plaintiff does not allege that Victaulic’s CPVC fire sprinkler
piping was dangerous to the user. Plaintiff only generally alleges that CPVC fire sprinkler
piping is not compatible with “metallic pipe.” Plaintiff does not allege that any Victaulic CPVC
fire sprinkler pipe leaked as a result of exposure to “metallic pipe.” Moreover, Plaintiff does not
even allege that any particular “common construction product” was present during the
installation of the fire sprinkler system. Accordingly, Plaintiff has failed to plead a cause of
action for strict liability.
Even if Plaintiff had properly pled strict liability for design/manufacturing defect, as with
its negligence claim, Plaintiff comingles its design defect claim with its failure to warn claim in
contravention of Florida law In addition, Plaintiff's failure to warn claim is barred because the
product(s) that Victaulic is alleged to have manufactured are not inherently dangerous products
as a matter of well-established Florida law.5
Cc Plaintiff Fails to State a Legally Cognizable Statutory Warranty Claim.
Plaintiff has not pled a cognizable cause of action for breach of implied warranty under
Florida Statutes § 718.203(2). Under this statute, only a “contractor,” “subcontractors,” and
“suppliers” extend an implied warranty of fitness to the developer and purchaser. Fla. Stat. §
718.203(2). Manufacturers like Victaulic are not “suppliers” under section 718.203(2) and
therefore do not owe developers or purchasers an implied warranty of fitness as to their products.
4 In the interest of brevity, the supporting arguments have been omitted as they are the same as those made in
Section A(3).
3 In the interest of brevity, the supporting arguments have been omitted as they are the same as those made in
Section A(3).
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1964922.1 04/10/2017Port Marina Condominium Ass'n, Inc. v. Roof Services, Inc., 119 So. 3d 1288, 1291 (Fla 4th
DCA 2013) (motion to dismiss statutory warranty claim against the manufacturer of roofing
materials was properly granted where there was no allegation that the manufacturer supplied
roofing materials to the condominium building in question); Harbor Landing Condominium
Owners Ass'n, Inc. v. Harbor Landing, LLC, 78 So.3d 120, 121 (Fla. 1st DCA 2012) (affirming
dismissal of statutory warranty claim filed against the manufacturer of a coating used on exterior
railings of a condominium building where the manufacturer did not supply the coating to the
condominium project).
Plaintiff attempts to circumvent this impediment by vaguely alleging that Victaulic
“designed, manufactured, marketed, sold and/or distributed the CPVC pipes and fittings used in
the CPVC fire suppression system . . Compl. § 22. The Complaint contains no factual
allegations to establish that Victaulic supplied piping to the Aventura Marina One Condominium
or even knew that its pipe was installed in the building. The Court must strike this bald legal
conclusion. Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982).
Regardless, to state a 718.203(2) claim against a supplier, Plaintiff was required to allege
“that [Victaulic] furnished, sold, or delivered anything to [Plaintiff], i.e., that it was in the
business of making the product available to consumers, as opposed to merely producing or
assembling the product that” a contractor purchased and used for the project. Port Marina, 119
So.3d at 1291. “[Mlerely pleading that [Victaulic] owes a duty to exercise reasonable care in
‘supplying’ [the materials] is insufficient to establish that [Victaulic] was in fact a supplier
within the meaning of section 718.203(2).” /d. Fatally, the Complaint does not allege that
Victaulic supplied materials directly to the condominium building. Indeed, as noted, Plaintiff is
unable to make such an allegation as Victaulic’s products were sold only to distributors.
1964922.1 04/10/2017The Florida District Court of Appeals recently addressed this precise issue in Harbor
Landing Condominium Owners Association v. Harbor Landing LLC. 78 So.3d at 121. The issue
in Harbor Landing arose when a condominium association sought to enforce a section
718.203(2) implied warranty against a coating manufacturer whose materials were used during
condominium construction. /d. Although the manufacturer’s materials ultimately ended up in
the condominium, a separate and distinct entity “actually supplied the railings for the
condominium project.” /d. Resisting the Plaintiff's efforts to extend the definition of “supplier”
to manufacturers (and presumably any business in the product’s distributive chain), the Court
noted that “[h]ad the Legislature wished to include manufacturers, regardless of whether they
have any direct connection to a condominium project, it could have done so.” /d. The court
accordingly affirmed dismissal.
Here, Victaulic is not alleged to have supplied defective products directly to Plaintiff.
Compl. 22, 220-28. Because the factual averments of the Complaint reveal that Victaulic is
not a “supplier” under section 718.203(2), Plaintiff's statutory implied-warranty claim must be
dismissed. See Harbor Landing, 78 So.3d at 121
This result is not only consistent with the plain language of the statute, but a contrary
result would swallow an entire body of Florida case law as it applies to condominium projects.
Indeed, “Florida law is well-established that a plaintiff must be in privity of contract with the
defendant to recover on an implied warranty claim.” /n re Bldg. Materials Corp. of Am. Asphalt
Roofing Shingle Prods. Liab. Litig., No. 8:12-cv-88, 2013 WL 1187024, at *2 (D. S.C. Mar. 20,
2013) (citing Mardegan v. Mylan, Inc., No. 10-14285-CIV, 2011 WL 3583743, at *6 (S.D. Fla.
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1964922.1 04/10/2017Io
Aug 12, 2011)). Without privity of contract, an implied warranty claim cannot proceed
Freeman v. Olin Corp., No. 5:12-cv-6, 2012 WL 1987019, at *1 (N.D. Fla. May 3, 2012)£
Plaintiff does not and cannot allege that it has a contract with Victaulic. It therefore asks
this Court to impose the limited implied warranties created by section 718.203(2) to any entity
“in the distributive chain” and far beyond the “contractor, and all subcontractors and suppliers”
to which the statute was intended to apply. This Court should decline Plaintiff’ s invitation that it
be the first to extended section 718.203(2) to such lengths. The claim must be dismissed against
Victaulic
Dz Plaintiff Fails to State a FDUTPA Claim Against Victaulic.
1. Plaintiff Lacks Standing to Maintain a FDUTPA Claim.
Plaintiff cannot assert a claim against Victaulic under Florida’s Deceptive and Unfair
Trade Practices Act (“FDUTPA”) because Plaintiff is not a “consumer” of Victaulic’s products.
See Fla. Stat. Ann. § 501.201 ef seg. FDUTPA protects only “persons who are deceived when
buying or selling goods and services.” Taft v. Dade County Bar Ass’n, No. 1:15-cv-22072, 2015
WL 5771811, *2 (S.D. Fla. Oct. 2, 2015). Because Plaintiff does not allege that it bought goods
or services from Victaulic and that those goods were installed in the Aventura Marina One
Condominium, its FDUTPA claim must fail. /d.; see also Kertesz v. Net Transactions, Ltd., 635
F. Supp. 2d 1339, 1349-50 (S.D. Fla. 2009); Cannova v. Breckenridge Pharm., Inc., No. 08-
81145-CIV, 2009 WL 64337, at *3 (S.D. Fla. Jan. 9, 2009); Goodbys Creek, LLC v. Arch Ins.
Co., No. 3:07-cv947-J-33HTS, 2008 WL 2950112, at *8-9 (M.D. Fla. July 31, 2008); Badillo v.
Playboy Entm’t Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707, at *6 (M.D. Fla. Mar.
See also Kramer v. Piper Aircraft Corp., 520 So.2d 37, 39 (Fla. 1988) (“Florida law requires privity of contract
to sustain a breach of implied warranty claim.”); Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1388 (S.D. Fla.
2014); Mann vy. Island Resorts Dev., Inc., 2008 WL 5381390, *3 (N.D. Fla. Dec. 19, 2008).
-ll-
1964922.1 04/10/201728, 2006). Specifically, Plaintiff does not allege that Victaulic sold any product to Plaintiff or
that Victaulic supplied any product for use in the Aventura Marina One Condominium. Plaintiff
is not a consumer and, therefore, lacks standing to maintain a claim against Victaulic under
FDUTPA.
2. Even If Plaintiff Had Standing —- Which It Does Not — It Fails to Allege
that Victaulic Engaged in Any Deceptive or Unfair Acts.
Even if Plaintiff were a consumer, it fails to allege facts that would give rise to a
FDUTPA claim against Victaulic. To state a claim for violating FDUTPA, a plaintiff must
allege facts, which, if true, would establish: (1) a deceptive act or unfair practice; (2) causation;
and (3) actual damages. Macias v. HBC of Florida, Inc., 694 So.2d 88, 90 (Fla. 3d DCA 1997).
This claim is subject to the heightened-pleading standard set forth in Rule 1.120, which requires
allegations of fraud to be pled with particularity. The comments to Rule 1.120 of the Florida
Rules of Civil Procedure state that the rule is “almost identical to Rule 9 of the Federal Rules of
Civil Procedure” and “should be consulted as a most helpful guide of construction of the similar
federal rule.”
Federal courts have specifically ruled that FDUTPA is subject to the heightened pleading
standard set forth in Rule 9(b). Liado-Carreno, 2011 WL 705403, at *3; Begualg Inv. Mgmt.
Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 WL 4434891 (S.D. Fla. Sept. 23,
2011). Under this standard, Plaintiff is required to “state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b) “plainly requires a complaint to
set forth (1) precisely what statements or omissions were made in which documents or oral
representations; (2) the time and place of each such statement and the person responsible for
making (or, in the case of omissions, not making) them; (3) the content of such statements and
the manner in which they misled the plaintiff, and (4) what the defendant obtained as a
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1964922.1 04/10/2017consequence of the fraud.” Find What Investor Group v. FindWhat.com, 658 F.3d 1282, 1296
(11th Cir. 2011). In other words, Plaintiff is required to identify the “who, what, where, when,
[and] how” of the allegedly deceptive or unfair statements giving rise to their claim. Begualg
Inv., 2011 WL 4434891, at *5. “[F]ailure to satisfy Rule 9(b) is a ground for dismissal of a
complaint.” Find What Investor Group, 658 F.3d at 1296. Plaintiff comes nowhere close to
satisfying this standard.
Absent “significant allegations of unfair or deceptive conduct,” a plaintiff cannot
maintain a claim under FDUTPA. Varnes v. Home Depot USA, Inc., No. 3:12-cv-622, 2012 WL
5611055, at *1 (M.D. Fla. Nov. 15, 2012). An act is deceptive only “if there is a representation,
omission, or practice that is likely to mislead the consumer acting reasonably in the
circumstances, to the consumer’s detriment.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d
773, 777 (Fla. 2003). The district court for the Southern District of Florida has ruled that “a
plaintiff must do more than merely allege in a conclusory fashion that a defendant’s actions
constitute an ‘unfair or deceptive act’ or that the defendant acted ‘wrongfully, unreasonably and
unjustly’ and for a ‘deceptive and improper purpose.’”” /nfinity Global, LLC v. Resort at Singer
Island, Inc., No. 07-80680, 2008 WL 1711535, at *4 (S.D. Fla. Apr. 10, 2008).
Plaintiff does not allege that Victaulic engaged in any unfair or deceptive practices, much
less state those allegations with particularity as is required by Rule 9(b). Instead, Count XX
simply reiterates Plaintiff's failure to warn allegations — i.e., alleging that Victaulic “knew that
the materials it was designing, manufacturing, supplying, marketing, and selling were defective,
bound to fail, and not compatible with other fire suppression system materials yet failed to
disclose such knowledge for pecuniary gain.” Compl., § 248. A mere failure to warn does not
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1964922.1 04/10/2017constitute a violation of FDUTPA2 To rule otherwise would transfer every run of the mill
failure to warn claim into a FDUTPA violation. That is not consistent with the purpose of the
Act.
3. FDUTPA Does Not Allow Plaintiff to Recover the Future Costs of
Replacing the Fire Sprinkler System.
Additionally, Plaintiff fails to identify any damages that it incurred as a result of any
unfair or deceptive conduct committed by Victaulic. See Compl., 393-404. Plaintiff seeks to
recover the future costs of repairing and replacing the fire sprinkler system because of the
potential damage that the system allegedly could cause. Compl., J] 45; 60. These damages are
not recoverable under FDUTPA. Under FDUTPA, a successful plaintiff is entitled only to
“actual damages.” Fla. Stat. § 501.211(2). “Actual damages” under FDUTPA “do not include
consequential damages, such as repair damages.” Kia Motors America Corp. v. Butler, 985
So.2d 1133, 1140 (Fla. 3d DCA 2008); Rollins, Inc. v. Butland, 951 So.2d 860, 869-70 (Fla. 2nd
DCA 2006) (“FDUTPA’s bar on the recovery of consequential damages precludes the recovery
of the costs to repair a building resulting from a deficient inspection for termites.”).
As explained above, the damages Plaintiff seeks to recover are consequential damages —
the costs of repairing the allegedly defective fire sprinkler system in the condominium building.
These damages are not recoverable under FDUTPA. While Plaintiff alleges it “has incurred
actual damages” that is a legal conclusion that is unsupported by any alleged facts. See Compl.,
| 256. Plaintiff does not allege that any Victaulic piping actually leaked, let alone that it caused
Because Plaintiff alleges no facts, which if true would establish that Victaulic engaged in any allegedly
deceptive acts, Plaintiff also cannot establish that Victaulic proximately caused it actual damages. See
Lombardo v. Johnson & Johnson Consumer Cos., No. 13-60536, 2015 WL 5025466, at *5 (S.D. Fla. Aug.
12, 2015) (To establish causation under FDUTPA, a plaintiff must establish “that an objectively reasonable
person would have been deceived” by the defendant’s acts and suffered damages thereby.) (citing
Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir. 2011).
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1964922.1 04/10/2017actual damage to the common elements of the buildings for which it would have standing to sue.
Absent any actual damages, this claim must be dismissed.
IV. CONCLUSION
For the reasons stated above, the Complaint fails to state a cognizable cause of action
against Defendant Victaulic Company under any legal theory, and all claims in the Complaint
against Victaulic should be dismissed with prejudice
WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida
ePortal to: Evan Small, Esquire, esmall@balljanik.com; jwidelitz@pballjanik.com;
nanderson@balljanik.com; spoitras@balljanik.com; Scott M Sarason, Esquire,
ssarason@rumberger.com; docketingmiami@rumberger.com; ssarasonsecy@rumberger.com;
ahernandez@rumberger.com; docketing@rumberger.com; ahernandezsecy@rumberger.com;
Armando G. Hernandez, Esquire, ahernandez@rumberger.com;
docketingmiami@rumberger.com; ahernandezsecy@rumberger.com; Joy Spillis Lundeen,
Esquire, ilundeen@stearnsweaver.com; dpollack@stearnsweaver.com;
kmelchiondo@stearnsweaver.com; jreed@stearnsweaver.com; amurphy@stearnsweaver.com;
yriesgo@stearmmsweaver.com; mileon@stearnsweaver.com; egarabal@stearnsweaver.com;
egarabal@stearnsweaver.com; David H. Pollack, Esquire, dpollack@stearnsweaver.com; Kelly
R. Melchiondo, kmelchiondo@stearnsweaver.com; Jenea M. Reed, Esquire,
jreed@stearnsweaver.com; Eric Boos, Esquire, eboos@shb.com; opiedra@shb.com; e-
servicemiami@shb.com; on this 10" day of April, 2017.
/s/ William Fink
William Fink, Esquire
Florida Bar No. 764851
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Victaulic Company
2800 Ponce de Leon Boulevard
Suite 800
Coral Gables, FL 33134
Phone: (305) 448-3939
Fax: (305) 441-1745
miacrtpleadings@wickersmith.com
-15-
1964922.1 04/10/2017
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Filing # 54840630 E-Filed 04/10/2017 10:38:27 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA AVENTURA MARINA ONE CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. Case No. 16-024917 CA 01 ALLIED TUBE & CONDUIT CORPORATION, TYCO INTERNATIONAL PLC, F/K/A TYCO INTERNATIONAL, LTD, TYCO FIRE PRODUCTS, LP, LUBRIZOL ADVANCED MATERIALS, INC. F/K/A NOVEON, INC. THE LUBRIZOL CORPORATION, GEORG FISCHEL HARVEL, LLC, AND VICTAULIC COMPANY, Defendants. / VICTAULIC COMPANY’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Pursuant to Florida Rules of Civil Procedure Rule 1.140(b)(6), Defendant, Victaulic Company (“Victaulic”), moves to dismiss Plaintiff, Aventura Marina One Condominium Association, Inc.’s (“Plaintiff’ or “Association”), Complaint, and in support thereof states as follows: I, SUMMARY OF ARGUMENT Plaintiff brings this lawsuit against seven manufacturers of fire sprinkler products to recover the future costs of replacing the fire sprinkler system at the Aventura Marina One Condominium. The Complaint alleges that CPVC fire sprinkler pipe is defective because it “breaks down and ultimately fails” when exposed to certain materials that Plaintiff characterizes as “common construction products.” Plaintiff attempts to assert causes of action against Victaulic for Negligence, Strict Liability, Breach of Statutory Warranty and violation of 1964922.1 04/10/2017Florida’s Deceptive and Unfair Trade Practices Act (““FDUTPA”). Plaintiff's claims do not state a cause of action against Victaulic and should be dismissed with prejudice for the following reasons: No Claim for Negligence or Strict Liability: Plaintiffs claims for negligence and strict liability fail for numerous reasons First, the claims are barred by the economic loss rule, which prevents product liability plaintiffs from recovering economic damages in tort when they have not sustained any property damage or personal injury. To the extent Plaintiff asserts claims arising from alleged damages to the personal property of the building’s individual unit owners, those claims fail because Plaintiff lacks standing to sue for those damages?. Second, the negligence and strict liability claims also must be dismissed because they each lack the supporting facts and specificity required by Florida law. Third, they also improperly co-mingle the separate causes of action for failure to warn, (while nonetheless failing to state a claim for failure to warn). No Claim for Statutory Implied Warranties: Section 718.203 of the Florida Statutes imposes a statutory implied warranty on contractors, subcontractors, and suppliers — but does not impose a similar duty against manufacturers, like Victaulic. Victaulic is not alleged to be a contractor, subcontractor, or supplier of products to the Aventura Marina One Condominium. This claim, therefore, must be dismissed as a matter of law. + Victaulic understands, however, that the Court is not inclined to dismiss tort claims in the pending CPVC lawsuits based on the economic loss rule at the motion to dismiss stage and will revisit this issue at the summary judgment stage. Victaulic reserves its right to reassert this issue in a motion for summary judgment. -2- 1964922.1 04/10/2017No Cognizable FDUTPA Claim: Plaintiffs FDUTPA claim should be dismissed because: (1) Plaintiff is not a “consumer” under the statute; (2) the Complaint does not identify a single unfair or deceptive act or practice committed by Victaulic; and (3) the damages Plaintiff seeks are not recoverable under the statute. IL LEGAL STANDARD To state a cause of action under Florida law, a complaint “must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Goodall v. Whispering Woods Ctr., LLC, 990 So.2d 695, 697 (Fla. 4th DCA 2008). In evaluating a pleading on a motion to dismiss, “[a] court may not go beyond the four comers of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader.” Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001). Where, as here, it is clear as a matter of law that the plaintiff is not entitled to relief even if the facts alleged were true, a motion to dismiss should be granted. WH Smith, PLC v. Benages & Assocs., Inc., 51 So. 3d 577, 583 (Fla. 3d DCA 2010); Clayton v. State Farm Mut. Auto. Ins. Co., 729 So. 2d 1012, 1013-14 (Fla. 3d DCA 1999) (affirming trial court decision to grant defendant’s motion to dismiss based on economic loss doctrine). Ti. ARGUMENT A, Plaintiff’s Tort Claims Against Victaulic Must Be Dismissed. i. Plaintiff's Tort Claims Are Barred by the Economic Loss Rule. Plaintiff's tort claims against Victaulic are barred by the economic loss rule because they seek to recover economic loss absent any alleged personal injury or damage to property other than the sprinkler system and the building into which it was incorporated. See Tiara Condo. 1964922.1 04/10/2017Ass'n, Inc. v. Marsh & McLennan Cos., 110 So.3d 399, 401 & 405 (Fla. 2013); Casa Clara Condo. Ass'n v. Charley Toppino & Sons, Inc., 620 So.2d 1244, 1247 (Fla. 1993)? 2. Plaintiff Does Not Have Standing to Sue for Alleged Damages to Any Unit Qwner’s Personal Property. Plaintiff cannot get around the economic loss rule by alleging that the piping not only damaged itself and the surrounding building, but also unidentified “personal property” of unit owners. See Compl. ff 32; 37. Plaintiff lacks standing to sue for any alleged damage to the personal property of individual unit owners. See Fla. Stat. Ann. § 718.1113 3. Plaintiff Fails to Properly Plead a Negligence Claim. In addition, Plaintiff's negligence claim fails to allege any facts showing causation, an indispensable element of a negligence claim. See Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007). Specifically, Plaintiff fails to allege how Victaulic’s design, manufacture, distribution, or sale of CPVC piping caused the claimed “damages.” Plaintiff does not allege that any Victaulic CPVC pipe leaked, let alone caused it damages. Instead, Plaintiff only speculatively alleges that CPVC pipes in general, may in the future suffer environmental stress cracking after being exposed to antimicrobial coatings and other materials that Plaintiff characterizes as “common construction materials.” A cause of action may not rest on the possibility that a party may incur damages at some unspecified point in time in the future. Parrish v. City of Orlando, 53 So.3d 1199, 1202 (Fla. 5th DCA 2011); see also Petrulli v. Approved Dry Wall Constr., 284 So.2d 27, 28 (Fla. 3d DCA 1973). These pleading deficiencies are inconsistent with the Florida Rules of 2 As mentioned in Footnote No. 1, Victaulic understands that the Court is not inclined to dismiss tort claims in the pending CPVC lawsuits based on the economic loss rule at the motion to dismiss stage, and thus, Victaulic reserves its right to submit further argument on this issue at the summary judgment stage. 3 As mentioned in Footnote No. 1, Victaulic understands that the Court is not inclined to dismiss tort claims in the pending CPVC lawsuits based on the economic loss rule at the motion to dismiss stage, and thus, Victaulic reserves its right to submit further argument on this issue at the summary judgment stage. -4- 1964922.1 04/10/2017Civil Procedure, which require that a pleading “state a cause of action...and shall contain...(2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief...” Fla. R. Civ. Pro. 1.110(b) (emphasis added); see also Doyle v. Flex, 210 So. 2d 493, 494 (Fla. 4th DCA 1968) (holding that a complaint must contain ultimate facts supporting each element of each cause of action); see also Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982) (Pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.) Even if Plaintiff had properly pled its negligence claim, it is still defective because it co- mingles multiple causes of action in contravention of Florida law. “All averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances. . . . Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.” Fla. R. Civ. P. 1.110(f); also see Evans v. Florida Farm Bureau Cas. Ins. Co., 384 So. 2d 959, 961 (Fla. Ist DCA 1980); see also K.R. Exchange Services, Inc. v. Fuerst, Humphrey, Ittleman, PL, et al., 48 So.3d 889 (Fla. 3d DCA 2010); Pratus v. City of Naples, 807 So.2d 795, 797 (Fla. 2d DCA 2002); see also Aspsoft, Inc. v. WebClay, 983 So.2d 761, 768 (Fla 5th DCA 2008) (holding that plaintiffs complaint set forth defective claims by “impermissibly comingling separate and distinct claims” in a single count); Dubus v. McArthur, 682 So.2d 1246, 1247 (Fla. 1st DCA 1996) (stating that the “task of the trial court was made more difficult because the appellants’ amended complaint improperly attempts to state in a single count separate causes of action”) In Paragraphs 216 and 217 of its negligence claim, Plaintiff attempts to plead a cause of action for failure to warn. Compl. ff] 216 & 217. Failure to warn, however, is a products 1964922.1 04/10/2017liability cause of action that is distinct from negligent design/manufacture, and should be pled in a separate count. Rodriguez v. New Holland N. Am., Inc., 767 So. 2d 543, 544 (Fla. 3d DCA 2000); see also Triana v. FI-Shock, Inc., 763 So. 2d 454, 457 (Fla. 3d DCA 2000). The Florida Supreme Court Standard Jury Instructions include separate instructions for Negligent Failure to Warn and Strict Liability Failure to Warn. See Fla. Standard Jury Instructions §§ 403.8; 403.10. Finally, even if properly pled, Plaintiff's negligent failure to warn claim fails under the facts alleged because under Florida law, the duty to warn of a latent defect is not invoked unless the product at issue is “inherently dangerous.” Zampa Drug Co. v. Wait, 103 So. 2d 603 (Fla. 1958). The fire sprinkler system here is not “inherently dangerous” under Florida law. In Tampa Drug Co. v. Wait, the Florida Supreme Court stated that “[w]hen a distributor of an inherently dangerous commodity places it in the channels of trade, then by the very nature of his business he assumes the duty of conveying to those who might use the product a fair and adequate warning of its dangerous potentialities .. . .” Jd. at 607. In imposing this duty to warn of an inherently dangerous product, the Court specifically excluded “liability resulting from a defect in an article that is ordinarily harmless.” /d. at 608. The Court then defined an inherently dangerous product as “a commodity burdened with a latent danger which derives from the very nature of the article itself.” /d. at 608. “The types of products placed in this limited category by the Florida courts are highly toxic materials . . . second hand guns . . . and drugs.” Dayton Tire & Rubber Co. v. Davis, 348 So. 2d 575, 582 (Fla. 1st DCA 1977) (overruled on other grounds) (holding that an automobile tire is not an inherently dangerous product as a matter of law); see also Byrnes v. Honda Motor Co., 887 F. Supp. 279 (S.D. Fla. 1994) (“Under Florida law, the duty to warn users of all potential dangers attaches only upon the sale and distribution of a product that is ‘inherently dangerous.””). 1964922.1 04/10/2017Accepting Plaintiffs allegations as true for purposes of this Motion, Victaulic’s CPVC fire sprinkler pipe does not qualify as an inherently dangerous product. Indeed, no Florida case has held that CPVC piping is an inherently dangerous product. Accordingly, as a matter of well- established Florida law, Victaulic could not have a duty to warn of any purported latent defect associated with its products, including incompatibility with other products, and such claim should be dismissed 4. Plaintiff Fails to Plead a Proper Strict Liability Claim. Plaintiff similarly fails to plead a claim for strict liability. “In order to hold a manufacturer liable on a theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages.” West v. Caterpillar Tractor Co., 336 So.2d 80, 86- 7 (Fla. 1976). Rice v. Walker, 359 So.2d 891 (Fla. 3d DCA 1978) is instructive. In that case, the Third District Court of Appeal affirmed the dismissal of a complaint that failed to allege sufficient facts showing a product defect. Without pointing to any specific defects, the plaintiff in that case broadly asserted that the components of the product “constituted dangerous instrumentalities in that they were not so constructed as to prevent” injury to the user. The Third District held that “while the plaintiff alleged various components including the hand-held control unit or mechanism were unsafe, the facts constituting such defects were not stated nor did the plaintiff allege facts showing how, as made, any such components were defective or dangerous to the user, or how they reasonably could or should have been made safe.” /d. at 892; see also Cassisi 1964922.1 04/10/2017vy. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981); Clark v. Boeing Co., 395 So.2d 1226 (Fla. 3d DCA 1981). Like the vague assertion in Rice that the component parts “constituted dangerous instrumentalities,” in this case, Plaintiff does not allege that Victaulic’s CPVC fire sprinkler piping was dangerous to the user. Plaintiff only generally alleges that CPVC fire sprinkler piping is not compatible with “metallic pipe.” Plaintiff does not allege that any Victaulic CPVC fire sprinkler pipe leaked as a result of exposure to “metallic pipe.” Moreover, Plaintiff does not even allege that any particular “common construction product” was present during the installation of the fire sprinkler system. Accordingly, Plaintiff has failed to plead a cause of action for strict liability. Even if Plaintiff had properly pled strict liability for design/manufacturing defect, as with its negligence claim, Plaintiff comingles its design defect claim with its failure to warn claim in contravention of Florida law In addition, Plaintiff's failure to warn claim is barred because the product(s) that Victaulic is alleged to have manufactured are not inherently dangerous products as a matter of well-established Florida law.5 Cc Plaintiff Fails to State a Legally Cognizable Statutory Warranty Claim. Plaintiff has not pled a cognizable cause of action for breach of implied warranty under Florida Statutes § 718.203(2). Under this statute, only a “contractor,” “subcontractors,” and “suppliers” extend an implied warranty of fitness to the developer and purchaser. Fla. Stat. § 718.203(2). Manufacturers like Victaulic are not “suppliers” under section 718.203(2) and therefore do not owe developers or purchasers an implied warranty of fitness as to their products. 4 In the interest of brevity, the supporting arguments have been omitted as they are the same as those made in Section A(3). 3 In the interest of brevity, the supporting arguments have been omitted as they are the same as those made in Section A(3). -8- 1964922.1 04/10/2017Port Marina Condominium Ass'n, Inc. v. Roof Services, Inc., 119 So. 3d 1288, 1291 (Fla 4th DCA 2013) (motion to dismiss statutory warranty claim against the manufacturer of roofing materials was properly granted where there was no allegation that the manufacturer supplied roofing materials to the condominium building in question); Harbor Landing Condominium Owners Ass'n, Inc. v. Harbor Landing, LLC, 78 So.3d 120, 121 (Fla. 1st DCA 2012) (affirming dismissal of statutory warranty claim filed against the manufacturer of a coating used on exterior railings of a condominium building where the manufacturer did not supply the coating to the condominium project). Plaintiff attempts to circumvent this impediment by vaguely alleging that Victaulic “designed, manufactured, marketed, sold and/or distributed the CPVC pipes and fittings used in the CPVC fire suppression system . . Compl. § 22. The Complaint contains no factual allegations to establish that Victaulic supplied piping to the Aventura Marina One Condominium or even knew that its pipe was installed in the building. The Court must strike this bald legal conclusion. Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). Regardless, to state a 718.203(2) claim against a supplier, Plaintiff was required to allege “that [Victaulic] furnished, sold, or delivered anything to [Plaintiff], i.e., that it was in the business of making the product available to consumers, as opposed to merely producing or assembling the product that” a contractor purchased and used for the project. Port Marina, 119 So.3d at 1291. “[Mlerely pleading that [Victaulic] owes a duty to exercise reasonable care in ‘supplying’ [the materials] is insufficient to establish that [Victaulic] was in fact a supplier within the meaning of section 718.203(2).” /d. Fatally, the Complaint does not allege that Victaulic supplied materials directly to the condominium building. Indeed, as noted, Plaintiff is unable to make such an allegation as Victaulic’s products were sold only to distributors. 1964922.1 04/10/2017The Florida District Court of Appeals recently addressed this precise issue in Harbor Landing Condominium Owners Association v. Harbor Landing LLC. 78 So.3d at 121. The issue in Harbor Landing arose when a condominium association sought to enforce a section 718.203(2) implied warranty against a coating manufacturer whose materials were used during condominium construction. /d. Although the manufacturer’s materials ultimately ended up in the condominium, a separate and distinct entity “actually supplied the railings for the condominium project.” /d. Resisting the Plaintiff's efforts to extend the definition of “supplier” to manufacturers (and presumably any business in the product’s distributive chain), the Court noted that “[h]ad the Legislature wished to include manufacturers, regardless of whether they have any direct connection to a condominium project, it could have done so.” /d. The court accordingly affirmed dismissal. Here, Victaulic is not alleged to have supplied defective products directly to Plaintiff. Compl. 22, 220-28. Because the factual averments of the Complaint reveal that Victaulic is not a “supplier” under section 718.203(2), Plaintiff's statutory implied-warranty claim must be dismissed. See Harbor Landing, 78 So.3d at 121 This result is not only consistent with the plain language of the statute, but a contrary result would swallow an entire body of Florida case law as it applies to condominium projects. Indeed, “Florida law is well-established that a plaintiff must be in privity of contract with the defendant to recover on an implied warranty claim.” /n re Bldg. Materials Corp. of Am. Asphalt Roofing Shingle Prods. Liab. Litig., No. 8:12-cv-88, 2013 WL 1187024, at *2 (D. S.C. Mar. 20, 2013) (citing Mardegan v. Mylan, Inc., No. 10-14285-CIV, 2011 WL 3583743, at *6 (S.D. Fla. -10- 1964922.1 04/10/2017Io Aug 12, 2011)). Without privity of contract, an implied warranty claim cannot proceed Freeman v. Olin Corp., No. 5:12-cv-6, 2012 WL 1987019, at *1 (N.D. Fla. May 3, 2012)£ Plaintiff does not and cannot allege that it has a contract with Victaulic. It therefore asks this Court to impose the limited implied warranties created by section 718.203(2) to any entity “in the distributive chain” and far beyond the “contractor, and all subcontractors and suppliers” to which the statute was intended to apply. This Court should decline Plaintiff’ s invitation that it be the first to extended section 718.203(2) to such lengths. The claim must be dismissed against Victaulic Dz Plaintiff Fails to State a FDUTPA Claim Against Victaulic. 1. Plaintiff Lacks Standing to Maintain a FDUTPA Claim. Plaintiff cannot assert a claim against Victaulic under Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) because Plaintiff is not a “consumer” of Victaulic’s products. See Fla. Stat. Ann. § 501.201 ef seg. FDUTPA protects only “persons who are deceived when buying or selling goods and services.” Taft v. Dade County Bar Ass’n, No. 1:15-cv-22072, 2015 WL 5771811, *2 (S.D. Fla. Oct. 2, 2015). Because Plaintiff does not allege that it bought goods or services from Victaulic and that those goods were installed in the Aventura Marina One Condominium, its FDUTPA claim must fail. /d.; see also Kertesz v. Net Transactions, Ltd., 635 F. Supp. 2d 1339, 1349-50 (S.D. Fla. 2009); Cannova v. Breckenridge Pharm., Inc., No. 08- 81145-CIV, 2009 WL 64337, at *3 (S.D. Fla. Jan. 9, 2009); Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv947-J-33HTS, 2008 WL 2950112, at *8-9 (M.D. Fla. July 31, 2008); Badillo v. Playboy Entm’t Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707, at *6 (M.D. Fla. Mar. See also Kramer v. Piper Aircraft Corp., 520 So.2d 37, 39 (Fla. 1988) (“Florida law requires privity of contract to sustain a breach of implied warranty claim.”); Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1388 (S.D. Fla. 2014); Mann vy. Island Resorts Dev., Inc., 2008 WL 5381390, *3 (N.D. Fla. Dec. 19, 2008). -ll- 1964922.1 04/10/201728, 2006). Specifically, Plaintiff does not allege that Victaulic sold any product to Plaintiff or that Victaulic supplied any product for use in the Aventura Marina One Condominium. Plaintiff is not a consumer and, therefore, lacks standing to maintain a claim against Victaulic under FDUTPA. 2. Even If Plaintiff Had Standing —- Which It Does Not — It Fails to Allege that Victaulic Engaged in Any Deceptive or Unfair Acts. Even if Plaintiff were a consumer, it fails to allege facts that would give rise to a FDUTPA claim against Victaulic. To state a claim for violating FDUTPA, a plaintiff must allege facts, which, if true, would establish: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. Macias v. HBC of Florida, Inc., 694 So.2d 88, 90 (Fla. 3d DCA 1997). This claim is subject to the heightened-pleading standard set forth in Rule 1.120, which requires allegations of fraud to be pled with particularity. The comments to Rule 1.120 of the Florida Rules of Civil Procedure state that the rule is “almost identical to Rule 9 of the Federal Rules of Civil Procedure” and “should be consulted as a most helpful guide of construction of the similar federal rule.” Federal courts have specifically ruled that FDUTPA is subject to the heightened pleading standard set forth in Rule 9(b). Liado-Carreno, 2011 WL 705403, at *3; Begualg Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 WL 4434891 (S.D. Fla. Sept. 23, 2011). Under this standard, Plaintiff is required to “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b) “plainly requires a complaint to set forth (1) precisely what statements or omissions were made in which documents or oral representations; (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) them; (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendant obtained as a -12- 1964922.1 04/10/2017consequence of the fraud.” Find What Investor Group v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011). In other words, Plaintiff is required to identify the “who, what, where, when, [and] how” of the allegedly deceptive or unfair statements giving rise to their claim. Begualg Inv., 2011 WL 4434891, at *5. “[F]ailure to satisfy Rule 9(b) is a ground for dismissal of a complaint.” Find What Investor Group, 658 F.3d at 1296. Plaintiff comes nowhere close to satisfying this standard. Absent “significant allegations of unfair or deceptive conduct,” a plaintiff cannot maintain a claim under FDUTPA. Varnes v. Home Depot USA, Inc., No. 3:12-cv-622, 2012 WL 5611055, at *1 (M.D. Fla. Nov. 15, 2012). An act is deceptive only “if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla. 2003). The district court for the Southern District of Florida has ruled that “a plaintiff must do more than merely allege in a conclusory fashion that a defendant’s actions constitute an ‘unfair or deceptive act’ or that the defendant acted ‘wrongfully, unreasonably and unjustly’ and for a ‘deceptive and improper purpose.’”” /nfinity Global, LLC v. Resort at Singer Island, Inc., No. 07-80680, 2008 WL 1711535, at *4 (S.D. Fla. Apr. 10, 2008). Plaintiff does not allege that Victaulic engaged in any unfair or deceptive practices, much less state those allegations with particularity as is required by Rule 9(b). Instead, Count XX simply reiterates Plaintiff's failure to warn allegations — i.e., alleging that Victaulic “knew that the materials it was designing, manufacturing, supplying, marketing, and selling were defective, bound to fail, and not compatible with other fire suppression system materials yet failed to disclose such knowledge for pecuniary gain.” Compl., § 248. A mere failure to warn does not -13- 1964922.1 04/10/2017constitute a violation of FDUTPA2 To rule otherwise would transfer every run of the mill failure to warn claim into a FDUTPA violation. That is not consistent with the purpose of the Act. 3. FDUTPA Does Not Allow Plaintiff to Recover the Future Costs of Replacing the Fire Sprinkler System. Additionally, Plaintiff fails to identify any damages that it incurred as a result of any unfair or deceptive conduct committed by Victaulic. See Compl., 393-404. Plaintiff seeks to recover the future costs of repairing and replacing the fire sprinkler system because of the potential damage that the system allegedly could cause. Compl., J] 45; 60. These damages are not recoverable under FDUTPA. Under FDUTPA, a successful plaintiff is entitled only to “actual damages.” Fla. Stat. § 501.211(2). “Actual damages” under FDUTPA “do not include consequential damages, such as repair damages.” Kia Motors America Corp. v. Butler, 985 So.2d 1133, 1140 (Fla. 3d DCA 2008); Rollins, Inc. v. Butland, 951 So.2d 860, 869-70 (Fla. 2nd DCA 2006) (“FDUTPA’s bar on the recovery of consequential damages precludes the recovery of the costs to repair a building resulting from a deficient inspection for termites.”). As explained above, the damages Plaintiff seeks to recover are consequential damages — the costs of repairing the allegedly defective fire sprinkler system in the condominium building. These damages are not recoverable under FDUTPA. While Plaintiff alleges it “has incurred actual damages” that is a legal conclusion that is unsupported by any alleged facts. See Compl., | 256. Plaintiff does not allege that any Victaulic piping actually leaked, let alone that it caused Because Plaintiff alleges no facts, which if true would establish that Victaulic engaged in any allegedly deceptive acts, Plaintiff also cannot establish that Victaulic proximately caused it actual damages. See Lombardo v. Johnson & Johnson Consumer Cos., No. 13-60536, 2015 WL 5025466, at *5 (S.D. Fla. Aug. 12, 2015) (To establish causation under FDUTPA, a plaintiff must establish “that an objectively reasonable person would have been deceived” by the defendant’s acts and suffered damages thereby.) (citing Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir. 2011). -14- 1964922.1 04/10/2017actual damage to the common elements of the buildings for which it would have standing to sue. Absent any actual damages, this claim must be dismissed. IV. CONCLUSION For the reasons stated above, the Complaint fails to state a cognizable cause of action against Defendant Victaulic Company under any legal theory, and all claims in the Complaint against Victaulic should be dismissed with prejudice WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Evan Small, Esquire, esmall@balljanik.com; jwidelitz@pballjanik.com; nanderson@balljanik.com; spoitras@balljanik.com; Scott M Sarason, Esquire, ssarason@rumberger.com; docketingmiami@rumberger.com; ssarasonsecy@rumberger.com; ahernandez@rumberger.com; docketing@rumberger.com; ahernandezsecy@rumberger.com; Armando G. Hernandez, Esquire, ahernandez@rumberger.com; docketingmiami@rumberger.com; ahernandezsecy@rumberger.com; Joy Spillis Lundeen, Esquire, ilundeen@stearnsweaver.com; dpollack@stearnsweaver.com; kmelchiondo@stearnsweaver.com; jreed@stearnsweaver.com; amurphy@stearnsweaver.com; yriesgo@stearmmsweaver.com; mileon@stearnsweaver.com; egarabal@stearnsweaver.com; egarabal@stearnsweaver.com; David H. Pollack, Esquire, dpollack@stearnsweaver.com; Kelly R. Melchiondo, kmelchiondo@stearnsweaver.com; Jenea M. Reed, Esquire, jreed@stearnsweaver.com; Eric Boos, Esquire, eboos@shb.com; opiedra@shb.com; e- servicemiami@shb.com; on this 10" day of April, 2017. /s/ William Fink William Fink, Esquire Florida Bar No. 764851 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Victaulic Company 2800 Ponce de Leon Boulevard Suite 800 Coral Gables, FL 33134 Phone: (305) 448-3939 Fax: (305) 441-1745 miacrtpleadings@wickersmith.com -15- 1964922.1 04/10/2017