Motion,Ex Parte: COLCERIU, LIGIA V INFLUIZE LTD

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                                Filing # 138091703 E-Filed 11/08/2021 01:00:53 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA

LIGIA COLCERIU, and those similarly Case No. 50-2021-CA-004891-XXXX-MB
situated,

Plaintiffs,

v.

INFLUIZE, LTD.,

Defendant.
/

DEFENDANT INFLUIZE, LTD.’S RENEWED MOTION TO DISMISS FIRST

ARATATAET CAAT ATNIT ANT INGADDAD ATH RATATAD ARTNITAR ATT AUT
ANLBINU EY CULE LALA ANU UVUCURE URAL BY WILIVWURAINUUINEUP LAW

Defendant, Influize, Ltd. (“Influize”), by and through undersigned counsel, hereby moves
to dismiss Plaintiff Ligia Colceriu’s (“Plaintiff”) First Amended Complaint with prejudice. In
support, Influize states as follows:

INTRODUCTION

Plaintiff and her counsel have filed three virtually identical boilerplate lawsuits in Florida
alleging that she was injured after clicking “Follow” on Instagram and failing to win a free
giveaway. | In fact, this Court has already entered judgment on the pleadings against
Plaintiff on her claim in this action against Defendant Alexa Collins and it should apply the

same ruling to Plaintiffs claims against Defendant Influize, Ltd.

1 The other boilerplate Complaints, some of which do not include some of Plaintiff's latest amended
allegations, are attached hereto as Exhibits A, B and C. (Compare Am. Compl. at {§ 64-74 to Colceriu v.
Engelhardt & Co., LLC, et al., ECF No. 1 at {53-57 and ECF No. 44 at { 61-70 (S.D. Fla. July 6, 2021),
attached as Exhibits A and B, and the First Amended Complaint in Chihaia v. Go Giveaways, LLC, et al.,
Case No. 2021-009231-CA-01, pending in the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida, is attached hereto as Exhibit C.

 

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BRODSKY FOTIU-WOjTOWICZ

 

 

 

 

 

 

 

CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FL EDI 44IN@INNDA N4A.AN-c2 DN
Pm. PAL DLA VUUINE TT, FL, VUOL IE mDnuecy, VLU, Firuureue! Ulu. citHere, Plaintiff sues Influize, which is a private limited company located entirely in England
and Wales, despite no significant nexus to Florida. Relying entirely on her same boilerplate
allegations that she joined in the contest by “clicking” on a bunch of Instagram posts but then did
not win a prize, Plaintiff brings a putative class action and purports to state statutory and common
law claims that the contest was a “fraud” and an “illegal lottery.” (Am. Compl. §{ 98, 121, 109-
167.) She does not and cannot allege any tangible or actual injury from clicking on these posts,
much less allege the legal elements required for any of claim.

The Court should dismiss this Complaint with prejudice for three reasons. First, Plaintiff
cannot satisfy her burden of demonstrating general or specific personal jurisdiction in the State of
Florida. Influize is a private limited company incorporated and registered in England and Wales
on April 23, 2020. (Sworn Declaration of Liam Derbyshire, attached hereto as Exhibit D at § 4.)
Influize does not maintain and has never had any offices or employees in the United States, much
less Florida. (/d. at {| 5-14.) Influize has never leased or owned any real property in Florida and
did not know that any giveaway connected to this case involved a Florida resident until after
Plaintiff filed this lawsuit. (/d. at {J 19-20.) Influize simply has no connection to this State and
there is no jurisdiction. (id. at Fj 5-14.)

Second, even if there were personal jurisdiction, Plaintiff does not have standing to bring
this putative class action. Plaintiff has pleaded nothing other than that she participated in a free
giveaway one day by clicking “Follow” on other Instagram profiles. She has not pleaded any injury
or loss suffered by these clicks, let alone a sufficient injury to “demonstrate a direct and articulable
stake in the outcome of a controversy’ to open the courthouse doors.” Pirate’s Treasure, Inc. v.

City of Dunedin, 277 So. 3d 1124, 1128 (Fla. 2d DCA 2019) (internal citations omitted). Plaintiff's

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BRODSKY FOTIU-WOJTOWICZTo reach this conclusion, the Court need go no further than its own ruling in this case,
when it entered judgment on the pleadings against Plaintiff and in favor of Alexa Collins. (This
Court’s August 22, 2021 Order Granting Defendant Alexa Collin’s Motion for Judgment on the
Pleadings, attached hereto as Ex. E.) This ruling is in line with other decisions and statements from
Florida Courts. On June 14, 2021, the United States District Court for the Middle District of Florida
dismissed Colceriu’s mirror-image complaint without prejudice for lack of standing after
concluding that allegations of “mere waste of time, voluntarily expended” were insufficient to
establish Article III standing and that Colceriu had not plausibly alleged that she “suffered an
injury related to an ‘invasion’ of her social media feed by the profiles she followed.” Colceriu v.
Engelhardt & Co., LLC, et al., Case No. 8:20-cv-1425-MSS-AAS (M.D. Fla. June 14, 2021), ECF
No. 43 at 5, attached as Exhibit E.?

Moreover, in another identical case in the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida, Plaintiff faces an “uphill battle” defeating a motion to dismiss set for hearing on
October 6, 2021. In that case, Judge Hanzman openly questioned the viability of Plaintiff's
allegations even before the motion to dismiss hearing, explaining: “T'll tell you, counsel, I’m a little
concerned about this case because jooking at the compiaint and the motion, I couidn't ascertain
how your client's been harmed by the alleged illegal activity in this case. It didn't look like
your client has spent any money or lost any money. And I’m concerned about whether they
have standing to maintain a case when their only injury appears to be going online and
participating in a free giveaway that they did not win. So you're going to have to explain to

me on October 6th why this plaintiff, who apparently is not out a nickel, has viable claims

2 In this matter, Plaintiff has sought to re-plead her allegations and awaits a ruling from the Court.

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BRODSKY FOTIU-WOJTOWICZthat should take the time of this Court and the funds of the taxpayers of Miami-Dade County.
So you'll have an uphill battle based upon what I've read thus far, but maybe you can persuade me
there is some viable cause of action here. In the meantime, I'm staying all discovery until the Court
determines that there is a colorable claim here that is able to proceed. Okay?” (Transcript from
August 30, 2021 Hearing, attached hereto as Exhibit F (emphasis supplied).)

Then, at a special set Motion to Dismiss hearing on October 6, 2021, the Court dismissed
the case without prejudice to provide Plaintiff with one last opportunity to try to plead cognizable
legal claims. (Excerpts from Transcript of October 6 Hearing, attached hereto as Exhibit G, at
32:20-33:10.) In that case as in this one, Plaintiff has sought to plead around the standing
requirements by adding allegations that: (1) it required “time and mental energy” to review
giveaway rules, (2) that “it took longer than 2 (two) minutes to follow all the accounts required to
enter into the giveaway and Colceriu did so only to participate in the Defendant’s lotteries, not
because she found anything particularly of interest in those accounts,” and (3) after following these
accounts, Plaintiff found that these accounts posted “at least once a day, [such that] Chihaia had
to spend at least 10% more time on Instagram to be able to review the content she was interested
in” which “transiated in at least an additionai 15 (fifteen) minutes spent daily on Instagram due to
her participation in this lottery.” (Am. Compl. at {J 69-70, 74.). These allegations change nothing.
Plaintiff cannot allege standing based on wasted time, particularly where it took only two minutes
to follow the Instagram accounts. Neither can Plaintiff allege standing where she voluntarily
wasted time after following these accounts due to voluntary acts. Swann v. Sec’y, Georgia, 668
F.3d 1285, 1288 (11th Cir. 2012); see also Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917

(11th Cir. 2020) (“Where a ‘hypothetical future harm’ is not ‘certainly impending,’ plaintiffs

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BRODSKY FOTIU-WOJTOWICZThe_ bottom line is that despite filing three _boilerplate_and virtually identical

Complaints in three separate Florida Courts, Plaintiff and her counsel have yet to have any

Court conclude that there is standing under these circumstances.

Third, Plaintiff has failed to sufficiently plead any of her claims. Plaintiff's statutory claim
based on Influize’s purportedly “illegal” lottery fails because Plaintiff does not have a private
cause of action under Chapter 849 of the Florida Statutes, nor does she state a claim under Chapter
772 of the Florida Statutes. Plaintiff's common law claims also fail because Plaintiff (1) has not
pleaded the essential elements of those claims, (2) has not pleaded her fraud-based claims with
particularity as required under Florida Rules of Civil Procedure, and (3) Plaintiff has not pleaded
any facts showing any actual injury.

FACTUAL ALLEGATIONS

Plaintiff's First Amended Complaint alleges personal jurisdiction over Influize, a private
limited company of the United Kingdom with its office in London, based on conclusory allegations
that Influize transacts business in Florida over the Internet and through an office located in
Wellington, Florida. (Am. Compl. at § 49.) Plaintiff then alleges a far-flung conspiracy whereby
instagram “influencers” are using “unscrupuious” methods to create advertising content. (Am.
Compl. {{ 54-77.) Plaintiff describes a number of purported “influencer” schemes that have
nothing to do with Influize. (/d.) As to Influize, Plaintiff claims that they “run illegal lotteries and
misrepresent the nature of such lotteries in order to convince Instagram users to take part in their
games of chance.” (/d. at § 29.) Plaintiff claims that Influize collects money from Instagram profile
holders who want to increase their “followers” on Instagram, and then invite individuals like

Plaintiff to participate in free games of chance by clicking “follow” on these Instagram profiles.

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BRODSKY FOTIU-WOJTOWICZreceive “any basic information like the odds of winning, how and when the drawing is done, who
provides the prize, etc.” (Id. at § 37.)

Plaintiff does not allege that she or any putative class member has spent or lost any money
on these games of chance or that they have suffered any injury or harm. Instead, Plaintiff is mostly
a bystander in her Complaint, barely referenced except for one set of allegations that she allegedly
clicked “Follow” a bunch of times to participate in a contest. These specific allegations are set
forth in the Amended Complaint in Paragraphs 65-77. (Am. Compl. ff 65-77.)

Plaintiff does not allege any facts supporting her claim that the giveaway was illegal or
fraudulent. She alleges simply that she did not win. There are no alleged facts showing that the
giveaway was “manipulated or rigged,” see Fla. Stat. § 849.094(2)(a), arbitrarily removed or
disallowed her entry, see Fla. Stat. § 849.094(2)(b), “fail[ed] to award prizes offered,” see Fla.
Stat. § 849.094(2)(c), or used material that was “false, deceptive, or misleading,” see Fla. Stat. §
849.094(2)(d). And while Plaintiff alleges that she was not told that the “influencers” whose page
she clicked “Follow” on were being paid or otherwise rewarded by Influize to set up the lottery,
her allegations show otherwise. Specifically, Plaintiff's allegations suggest that Influize’s account
in fact disclosed the “influencers” whose profiles Piaintiff clicked to “follow” were being charged
by Influize to grow its audience. (See id. at {] 37, 43, 56, 58, 63, 68-69.)

MEMORANDUM OF LAW AND LEGAL ARGUMENT

 

I. PLAINTIFF CANNOT DEMONSTRATE THE EXISTENCE OF PERSONAL

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A. Legal Standard.

Under Florida law, a plaintiff bears the burden of establishing a prima facie basis for

asserting personal jurisdiction over a defendant. Teva Pharmaceutical Industries v. Ruiz, 181 So.

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BRODSKY FOTIU-WOJTOWICZ3d 513 (Fla. 2d DCA 2015). Ifa plaintiff establishes a prima facie basis for jurisdiction, the burden
shifts to the defendant to “file a legally sufficient affidavit or other sworn proof that contests the
essential jurisdictional facts” alleged by the plaintiff. Jd. at 518. Where the defendant files a legally
sufficient affidavit, the burden then shifts back to the plaintiff to “prove by affidavit or other sworn
proof that a basis for . . . jurisdiction exists.” Jd. at 519. “If the plaintiff fails to come forward with
sworn proof to refute the allegations in the defendant’s affidavit and to prove jurisdiction, the
defendant’s motion to dismiss must be granted.” Jd. (internal citations omitted).

In analyzing the allegations and evidence, trial courts engage in a two-step process for
determining whether personal jurisdiction exists. Highland Stucco & Lime Prods. v. Onorato, 259
So. 3d 944, 948 (Fla. 3d DCA 2018). First, a trial court must determine whether there exist
sufficient jurisdictional facts to bring the action within the purview of Florida's long-arm statute,
section 48.193, Florida Statutes. Jd. “The first, or statutory prong, is established by demonstrating
either general or specific jurisdiction.” /d. (citing Teva Pharm. Indus., 181 So.3d at 517). “General
jurisdiction is established where the defendant has engaged in substantial and not isolated activity

within the state.” Jd. “In other words, the defendant's affiliations with the state are so continuous

  

and systemic as to render it essentially ‘at home’ in the forum state. (internai citations omitted).
“Specific jurisdiction, on the other hand, is established by pleading specific facts that demonstrate
that the defendant's conduct fits within one or more subsections of section 48.193.” Id.

Second, the trial court must determine whether the foreign corporation possesses sufficient

minimum contacts with Florida to satisfy federal constitutional due process requirements. Jd. This
is controlled by “United States Supreme Court precedent interpreting the Due Process Clause and

imposes a more restrictive requirement.” Jd. “In this connection, the plaintiff must establish that

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BRODSKY FOTIU-WOJTOWICZit; (2) involve some act by which the defendant purposefully availed itself of the privilege of

conducting business within the forum; and (3) the defendant's act is such that it should reasonably

anticipate being haled into court in that forum state.” Jd. at 950.

B. Plaintiff Cannot Demonstrate General Personal Jurisdiction over Influize
in Florida.

Plaintiff alleges general personal jurisdiction under Fla. Stat. § 48.193(2) based on
allegations that Influize “is transacting business in Florida over the internet and through an office
located in Wellington, Florida” which constitutes “substantial and isolated activities as most of the

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These allegations are woefully insufficiently to support the exercise of general personal
jurisdiction. Influize is a wholly owned private limited company incorporated and registered in the
Registrar of Companies for England and Wales. (Ex. D at 42.) It has always had a registered office
in the United Kingdom, and has not at any time had any offices in the United States much less in
Florida. (/d. at {[ 3-5.) Influize is not registered to do business in the State of Florida, has never
had a registered agent in the State of Florida, does not own or lease real property in Florida, and
does not have any addresses in Florida. (/d. at {§ 6-8.) Influize does not have any employees in
Florida and has never promoted any giveaways using any locations managed, owned or operated
by Influize in Florida. (/d. at §{ 9-12.) In addition, the reports from Instagram reflect that very few,
if any, of Influize’s followers besides Plaintiff are located in Florida. (Id. at JJ 14-15.) The only
reference to Florida anywhere in this case is a single address listed on Influize’s website at one
time, which was listed by mistake. (/d. at {| 7.) Under binding United States Supreme Court and
Florida precedent, Influize is not “at home” in Florida and Plaintiff cannot demonstrate general

personal jurisdiction over Influize. Teva Pharm. Indus., 181 So. 3d at 521 (“In the present case,

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BRODSKY FOTIU-WOJTOWICZneither Teva USA nor Teva Industries is incorporated in Florida or has its principal place of
business here. Therefore, pursuant to Daimler, Florida does not have general jurisdiction over
either company.”); Fincantieri-Cantieri Navali Italiani S.p.A. v. Yuzwa, 241 So. 3d 938, 944 (Fla.
3d DCA 2018) (reversing trial court and finding no general personal jurisdiction in Florida where
company had an office in Miami with a single employee, because “all of Fincatieri’s executive
officers and directors reside in Italy” and the “vast majority of Fincatieri’s 7,000 plus employees
are based in the company’s offices and shipyards in Italy”).

Cc. Plaintiff Cannot Demonstrate Specific Personal Jurisdiction over Influize in
Florida.

To demonstrate specific personal jurisdiction, Plaintiff must both identify a specific
applicable section of the Florida long-arm statute and demonstrate that the exercise of personal
jurisdiction comports with the Due Process Clause to the United States Constitution. Island Wifi
Ltd., LLC v. AT&T Mobility Nat’l Accts. LLC, No. 1:20-CV-23741-WPD, 2021 WL 210536, at *2
(S.D. Fla. Jan. 19, 2021) (“Specific personal jurisdiction under the Florida long-arm statute
requires that the asserted cause of action must “arise out of” one of a statutory list of defendant
contacts with Florida, such as doing business in Florida.” (quoting Hinkle v. Cirrus Design Corp.,
775 F. App'x 545, 547 (11th Cir. 2019) (citing Fla. Stat. § 48.193(1)(a))). Here, Plaintiff alleges
specific personal jurisdiction which appears to be set forth based on Fla. § 48.193(1)(a)(1) due to
allegations that “Influize is transacting business in Florida over the Internet and through an office
locaied ii Wellington, Florida” and “engages 1 OuSsINeSS 1 the United States tnrougn its Florida
office”, by “promoting” giveaways using Florida locations and “advertising the giveaways as
being conducted in Florida.” (Am. Compl. at {ff 49, 52.)

The Court should dismiss for lack of specific personal jurisdiction for two reasons. First,

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BRODSKY FOTIU-WOJTOWICZPlaintiff relies entirely on Section 48.193(1)(a)(1) of the Florida long-arm statute, and her
allegations concerning Influize having an office in Florida or engaging in business in Florida are
wholly refuted by the Sworn Declaration of Liam Derbyshire. (Ex. D.) In light of this unrefuted
record evidence, the case should be dismissed for lack of personal jurisdiction. Hilltopper Holding
Corp. v. Est. of Cutchin ex rel. Engle, 955 So. 2d 598, 602 (Fla. 2d DCA 2007) (reversing trial
court’s denial of motion to dismiss for lack of personal jurisdiction where plaintiff failed to present
record evidence showing basis to establish jurisdiction under Section 48.193(1)(a) or
48.193(1)(b)); see also Stonepeak Partners, LP v. Tall Tower Cap., LLC, 231 So. 3d 548, 557 (Fla.
2d DCA 2017) (reversing denial of motion to dismiss for lack of jurisdiction and holding that
evidence did not establish that defendant engaged in business venture in Florida under Section
48.193(1)(a)(1) because “Stonepeak never consummated a transaction to purchase the Clear
Channel assets or even entered into a contract for purchase. Stonepeak did not enter into any LLC
or management agreement with Tall Tower. Stonepeak did not deal in any property in Florida but
investigated the possibility of entering into such a transaction. Stonepeak owned no real property
in Florida.”); Prunty v. Arnold & Itkin LLP, 753 F. App’x 731, 735 (11th Cir. 2018) (affirming
dismissai of ciaims against out-of-state attorneys without prejudice for iack of personai jurisdiction
and explaining that the “out-of-state attorneys’ affidavits established that they are not licensed to
practice law in Florida, do not have offices in Florida, do not travel to Florida for business, and do
not actively seek out Florida clients” and “{i]n response, Mr. Prunty argued that personal
jurisdiction was appropriate because the law firms used the Internet to contact clients and conduct
business in Florida”).

Second, exercising personal jurisdiction would violate the Due Process Clause to the

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BRODSKY FOTIU-WOJTOWICZcontacts” between the nonresident defendant and the forum state, such that the maintenance of the
suit does not offend “traditional notions of fair play and substantial justice.” Greentree Fin. Grp.,
Inc. v. Long Fortune Valley Tourism, 824 F. Supp. 2d 1363, 1368 (S.D. Fla. 2011) (citing Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Eleventh Circuit, which Florida Courts
may look to for guidance, “has adopted a three-part test to determine whether the minimum
contacts requirement is met: first, the contacts must be related to the plaintiff's cause of action;
second, the contacts must involve some act by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum; and third, the defendant's contacts must be
such that the defendant should reasonably anticipate being haled into court there.” Jd.

None of these factors are present in this case. Influize has no contacts with Florida, much
less contacts that are related to Plaintiff's claims, there is no evidence that Influize purposefully
availed itself of conducting activities in Florida, and Influize could not reasonably be anticipated
to be haled into Court in Florida. To be clear, Influize is a foreign company with no presence
whatsoever in the state of Florida. (Ex. D at {J 2-15.) It has never had any offices or locations
in Florida, never been registered to do business in Florida, never listed a registered agent in Florida,
has no employees in Florida, and has never promoted any giveaways using any locations managed,
owned or operated by Influize in Florida. (/d. at {{] 2-12.) Influize also does not target Florida
consumers and an immeasurably small number of its followers (i.e., less than 1.6%) are located in
Florida. (/d. at {J 14-17.) Influize did not know that Alexa Collins was located in Florida until
after this lawsuit was filed and could not have reasonably anticipated being haled into Court in
Florida. (/d. at {J 18-20.) Under these circumstances, exercising personal jurisdiction over Influize

would violate the Due Process Clause to the United States Constitution. Westwind Limousine, Inc.

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BRODSKY FOTIU-WOJTOWICZlack of jurisdiction where “the evidence presented by the Shorter shows nothing more than the
‘isolated occurrence’ of a single sale to a Florida corporation. The Shorter presented no facts that
demonstrate any effort by Westwind to market its products in Florida. The fact that Westwind may
have known or foreseen that H.K. Finance would operate the vehicle in Florida, standing alone, is

insufficient to confer personal jurisdiction in a Florida state court under the Due Process Clause.”).

Il. IN ANY EVENT, PLAINTIFF CANNOT SHOW THAT SHE HAS STANDING
TO BRING ANY LEGAL CLAIM.

A. Legal Standard.

   

ved at the outset of a disnute under
Florida law. See Solares v. City of Miami, 166 So. 3d 887, 887 (Fla. 3d DCA 2015) (citing Ferreiro

v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, 376 (Fla. 3d DCA 2006)). If a plaintiff cannot

show that a justiciable controversy exists between the plaintiff and the defendant, then dismissal

of the action is warranted. See Baptist Hosp., Inc. v. Baker, 84 So. 3d 1200, 1204-05 (putative class
action dismissed where plaintiff had not suffered any damages and thus lacked standing to
represent a class); Oliver v. Stufflebeam, 155 So. 3d 395, 398 (Fla. 3d DCA 2014) (citing Dep’t of

Revenue v. Kuhnlein, 646 So. 2d 717, 720-21 (Fla. 1994)) (affirming dismissal of the action

because it lacked a “case or controversy requiring the expenditure of judicial labor”); Collins v.
Gov't Employees Ins. Co., 922 So. 2d 353, 353 (Fla. 3d DCA 2006) (affirming dismissal because

plaintiff did not plead a justiciable controversy).?

3 See also United Auto. Ins. Co. v. Diagnostics of S. Florida, Inc., 921 So. 2d 23, 25 (Fla. 3d DCA 2006)
(noting that dismissal is the proper procedure when a class plaintiff lacks individual standing and holding
that plaintiff did not have standing because it did not suffer an injury); Taran v. Blue Cross Blue Shield of
Florida, Inc., 685 So. 2d 1004, 1006 (Fla. 3d DCA 1997) (affirming dismissal of class action complaint
where, among other deficiencies, “the plaintiffs who filed the class action complaint were shown at the
outset to have suffered no injury .. . .”); Graham v. State Farm Fire & Cas. Co., 813 So. 2d 273, 274 (Fla.
5th DCA 2002) (affirming dismissal of class claims because plaintiff lacked standing): 5 W.S. Badcock

Corp. v. Webb, 699 So. 2d 859, 861 (Fla. Sth DCA 1997) (remanding with directions to dismiss putative
12

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BRODSKY FOTIU-WOJTOWICZWhile “United States Supreme Court cases interpreting standing under the federal
constitution [are] obviously not binding on a Florida court's interpretation of standing,” these
decisions are persuasive as “Florida courts often look to federal cases when resolving issues of
standing.” Solares, 166 So. 3d at 889. This is especially true where a plaintiff brings a putative
class action complaint. Jnt’] Longshoremen's Ass'n v. Fisher, 800 So. 2d 339, 340 (Fla. Ist DCA
2001) (“Because Florida's “class action” provision, Florida Rule of Civil Procedure 1.220, is based
on Federal Rule of Civil Procedure 23, we can consider federal cases as persuasive authority in
the interpretation of the state rule.” (citing Concerned Class Members v. Sailfish Point, Inc., 704
So.2d 200 (Fla. 4th DCA 1998) and Broin v. Philip Morris Cos., Inc., 641 So.2d 888 (Fla. 3d DCA
1994)); City of Ormond Beach v. Mayo, 330 So. 2d 524, 525 (Fla. 1st DCA 1976) (“We agree with
the Commission that the federal cases concerning standing are relevant to the case sub judice. ...
[A] plaintiff must demonstrate that the purported harm caused by the defendant has directly injured
him.”); Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011) (addressing standing in
class action matter and relying on federal “case or controversy” standards); Baptist Hosp., Inc., 84
So. 3d at 1204-05 (holding that plaintiff lacked standing to assert a class claim for damages, citing
federal “case or controversy” standards). As is relevant here, federai courts require a piaintiit
seeking to demonstrate a “case or controversy” to allege that she has “suffered an injury in fact.”
Spokeo, 136 S. Ct. at 1547. That injury in fact must be “‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical.’” /d. (quoting Lujan, 504 U.S. at 560).

At its core, a plaintiff must show “a sufficient interest at stake in the controversy which

will be affected by the outcome of the litigation.” Jamlynn Invs. Corp. v. San Marco Residences

class action for breach of contract because plaintiffs lacked standing).

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BRODSKY FOTIU-WOJTOWICZof Marco Condo. Ass'n, 544 So. 2d 1080, 1082 (Fla. 2d DCA 1989); Pirate's Treasure, Inc. 277
So. 3d at 1128 (explaining that Florida law requires that a party “demonstrate a direct and
articulable stake in the outcome of a controversy’ to open the courthouse doors”); see also
Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1091 (Fla. 2d DCA 2015) (quoting
Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012))). And
“[P]laintiffs must demonstrate standing for each claim that they press and for each form of relief
that they seek (for example, injunctive relief and damages).” TransUnion LLC v. Ramirez, 141 S.
Ct. 2190, 2208 (U.S. 2021).

B. Plaintiff does not and cannot plead a concrete and particularized injury in
fact.

As this Court already concluded in the case of Alex Collins, Plaintiff fails to allege facts
that give rise to standing under Florida law. Even a quick glance at the Amended Complaint
demonstrates that Plaintiff does not plead any particularized allegations of injury, let alone
allegations showing that she suffered a “direct and articulable” injury that would give him a stake
in this controversy. The only allegations showing that Plaintiff took any action relating to the
Influize’s purported misconduct state that Plaintiff used “time and mental energy” to review
giveaway rules, clicked “Follow” with respect to 70 accounts for a chance at a free giveaway and
that “it took longer than 2 (two) minutes to follow all the accounts required to enter into the
giveaway and Colceriu did so only to participate in the Defendant’s lotteries, not because she found
anyining particularly of interest im those accounts” and afer following these accounts, Plamtit
found that these accounts posted “at least once a day, [such that] Colceriu had to spend at least
10% more time on Instagram to be able to review the content she was interested in” which

“translated in at least an additional 15 (fifteen) minutes spent daily on Instagram due to her

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BRODSKY FOTIU-WOJTOWICZparticipation in this lottery.” (Am. Compl. at {{ 69-77.)

These amended allegations only further highlight the frivolous nature of Plaintiffs claims
and show that there is no standing. Plaintiff alleges standing because she clicked on a few links
for two minutes and then, afterwards, wasted time voluntarily in scrolling through the content
from those accounts. These allegations are nowhere near enough to demonstrate standing. In
fact, the Eleventh Circuit has made clear that allegations regarding “wasted time” and other types
of intangible harm are almost always insufficient to demonstrate a concrete injury sufficient for
standing. First, in Salcedo, the Eleventh Circuit held the time wasted due to mere receipt of an
unsolicited text message was insufficient to demonstrate standing to sue. [d. at 1165. It held that,
in such instances, the “alleged harm is isolated, momentary, and ephemeral,” akin to begin mailed
an unwanted postcard. Jd. at 1171. The Salcedo court rejected the argument that allegations of a
statutory violation (there, the Telephone Consumer Protection Act) were sufficient to establish
standing, holding that “allegations of a brief, inconsequential annoyance are categorically distinct
from those kinds of real but intangible harms” that satisfy the injury in fact requirement:

The chirp, buzz, or blink ofa cellphone receiving a single text message is more akin
to walking down a busy sidewalk and | having a flyer briefly waived in one’s face.

Annoying, perhaps, but not a basis for invoking the Jurisdiction of the Jederai
courts.
Id. at 1172 (emphasis added). Florida district courts have since applied Salcedo to cases where the

plaintiff alleges that he or she was harmed receiving and reviewing multiple unsolicited text

  

OL. ris. = Da AT. 10.99691 NANA TT LaneAOA 22 ee

él, Iné., Case INO. 10-42)I51, 2UZU WL 14/)U74, al ~O
(S.D. Fla. Mar. 10, 2020) (no injury in fact where plaintiff received five text messages that
allegedly wasted his time and depleted cellphone battery); Fenwick v. Orthopedic Specialty

Institute, PLLC, Case No. 0:19-cv-62290-Ruiz/Strauss, 2020 WL 913321, at *4 (S.D. Fla. Feb. 4,

15

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BRODSKY FOTIU-WOJTOWICZ2020) (Strauss, M.J.) (recommending that receipt of three text messages did not establish an injury
in-fact for purposes of Article III standing).

The Eleventh Circuit has since applied the Salcedo reasoning in several other decisions. In
Cordoba v. DIRECTV LLC, 942 F.3d 1259, 1274 (11th Cir. 2019), for example, the court held that
in a putative class action, the district court at some point has to “determine whether each member
of the class has standing.” (Emphasis added.) The Eleventh Circuit further clarified the
“concreteness” inquiry in Muransky, holding that “statutory violations do not—cannot—give us
permission to offer plaintiffs a wink and a nod on concreteness.” 979 F.3d at 925; see also Glasser
v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020) (noting a “real injury
remains necessary” in the context of an alleged statutory violation). The Muransky court rejected
plaintiff’s allegations that the defendant’s alleged violations of the Fair and Accurate Credit
Transaction Act, wherein the defendant printed a receipt without truncating his personal
information, caused him a concrete injury simply because the statute was violated. 979 F.3d at
931. Again, the court rejected a plaintiffs allegation of “wasted time” as a concrete injury
sufficient for Article III standing. Jd.

Most recentiy, in Grigorian v. FCA US LLC, the Eleventh Circutt heid that the ioss of time
from listening to and researching an unsolicited voicemail did not demonstrate a harm “sufficiently
concrete to constitute an injury in fact.” Case No. 19-15026, 2020 WL 7238392, at *2 (11th Cir.
Dec. 9, 2020). The court held that evidence of “lost personal time” that did not otherwise render a
plaintiff's mobile phone unavailable was not sufficient to establish standing. Id. at *3. And the
court held that standing could not be created simply by allegations “embellishing a deficient

allegation of injury.” Id.

16

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BRODSKY FOTIU-WOJTOWICZWhile Florida appellate courts have yet to apply this recent Eleventh Circuit precedent, it
is persuasive and further underscores why this case should be dismissed with prejudice. Even a
quick glance at the Amended Complaint demonstrates that Plaintiff does not plead any
particularized allegations of injury, let alone allegations showing that she suffered a “direct and
articulable” injury that would give her a stake in this controversy. The only allegations showing
that Plaintiff took any action relating to the Defendants’ purported misconduct state that Plaintiff
clicked “Follow” with respect to “100 unrelated accounts” for a chance at a free giveaway after
“spending his time to do that and allowing all these strangers to ‘invade’ his Instagram account,”
and then wasted more time voluntarily in scrolling through these accounts. (Am. Compl. {ff 67-
72.)

There is no concrete injury and Plaintiff — at most — alleges a “mere waste of time,

voluntarily expended” and an “‘invasion’ of her social media feed by the profiles she followed,”
which is insufficient to establish standing. (See Ex. C at p. 5); Eldridge v. Pet Supermarket, Inc.,
Case No. 18-22531, 2020 WL 1475094, at *6 (S.D. Fla. Mar. 10, 2020) (no standing where a
plaintiff alleged that “texts ‘invaded [his] privacy, intruded upon his seclusion and solitude, wasted
his time by requiring him to open and read the messages, depieted his celiular telephone battery,
and caused him to incur a usage allocation deduction to his text messaging or data plan.”); Fenwick
v. Orthopedic Specialty Institute, PLLC, Case No. 0:19-cv-62290-Ruiz/Strauss, 2020 WL 913321,
at *4 (S.D. Fla. Feb. 4, 2020) (Strauss, M.J.) (recommending that receipt of three text messages
did not establish an injury-in-fact for purposes of Article III standing).

This is especially true in light of Plaintiffs allegation that she has legal standing because

she “had” to spend more time on Instagram for leisure after entering into the giveaway. The

lavanth Civenit hac mada clans that a “nantenvaroy je nant inetisiahla urhan a nlaintiff
gacvenur Uneule mas miaue Citar ular a COnuOversy 15 Or jusuciaciw Wien a pain

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BRODSKY FOTIU-WOJTOWICZindependently caused his own injury.” Swann, 668 F.3d at 1288. There is no standing in this case
because “[a]ny wasted time . . . was a self-inflicted injury not caused by [Defendants].” Crowder
v. Andreu, Palma, Lavin & Solis, PLLC, No. 2:19-CV-820-SPC-NPM, 2021 WL 1338767, at *8
(M.D. Fla. Apr. 9, 2021) (dismissing case due to lack of standing and citing Swann, 668 F.3d at
1288) and Wasser v. All Market, Inc., 329 F.R.D. 464, 470-71 (S.D. Fla. 2018) (collecting cases));
In re Equifax, Inc., Customer Data Sec. Breach Litig., No. 1:17-MD-2800-TWT, 2019 WL
926999, at *5 (N.D. Ga. Jan. 28, 2019) (dismissing case for lack of standing where Plaintiffs
alleged incurring “voluntary costs” in response to data breach because “Plaintiffs cannot
‘manufacture’ standing by taking on voluntary costs”); Torres v. Wendy's Co., 195 F. Supp. 3d
1278, 1284 (M.D. Fla. 2016) (“Plaintiff alleges that he suffered ‘ascertainable losses in the form
of out-of-pocket expenses’ to mitigate the data breach, (Doc. 1, {42(f)), and that he incurred ‘costs
associated with [the] inability to obtain money from [his] account.’ (/d. § 42()). However,
plaintiffs ‘cannot manufacture standing merely by inflicting harm on themselves based on their
fears of hypothetical future harm that is not certainly impending.’”); Alabama Freethought Ass'n
v. Moore, 893 F. Supp. 1522, 1536 at n. 26 (N.D. Ala. 1995) (“This court cannot understand how
voluntary exposure to purportediy offensive conduct can establish standing to obtain an injunction
barring such conduct. To recognize standing in such circumstances would be to allow a plaintiff
to ‘manufacture’ her standing. Such a clever machination (or is it masochism), if recognized as
legitimate, would make a mockery of the longstanding judicial interpretation of Article III’s ‘case
or controversy’ requirement.”); Nat’l Family Planning & Reprod. Health Ass'n, Inc. v. Gonzales,
468 F.3d 826, 831 (D.C. Cir. 2006) (“We have consistently held that self-inflicted harm doesn't

satisfy the basic requirements for standing. Such harm does not amount to an ‘injury’ cognizable

windar Avtinia TIT Dretha. if nalf inflintad hare analified a. it wanda nat ha
unger ATUCIC UL. Puruiceimore, CVen i SCu-imniciea Naima quaniea 45 ai injury it Would Mot oc

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BRODSKY FOTIU-WOJTOWICZfairly traceable to the defendant's challenged conduct . . . As the [plaintiff] has chosen to remain

in the lurch, it cannot demonstrate an injury sufficient to confer standing.” (citations omitted); 13
Fed. Prac. & Proc. Juris. 2d § 3531.5, Causation (2004) (“[A]t some point, standing may be denied
because the injury seems solely—or almost solely—attributable to the plaintiff.”).*

Plaintiff's claim-specific allegations are also insufficient as a matter of law. With respect
to Plaintiffs claims for unjust enrichment and negligent misrepresentation, Plaintiff states that
“members of the class continue to suffer injuries as a result of the Defendants’ behaviors” and

“members of the Class suffered injury.” (Am. Compl. at {J 84, 89.) The court in Engelhardt

already found these allegations insufficient—“Plaintiff cannot satisfy her burden to prove standing
... simply intoning the word ‘injury.”” (See Ex. E at p. 5.)
Further, it is well settled that Florida’s Deceptive and Unfair Trade Practices Act

(“FDUTPA”) and section 772.104, Florida Statutes require Plaintiff to plead actual injuries. See

Fla. Stat. § 772.104(1) (“Any person who proves by clear and convincing evidence that he or she
has been injured by reason of any violation of the provisions of s. 772.103 shall have a cause of

action for ... minimum damages in the amount of $200”) (emphasis added); Meridian Tr. Co. v.

Batista, 17-23051, 2018 WL 4760277, at *4 (S.D. Fila. Sept. 30, 2018) (the “connection between

4 Plaintiff's conclusory allegations that she has a strong interest in the purportedly improper sponsorships and
giveaways on Instagram is also not enough to demonstrate standing. See Dep't of Revenue v. Kuhnlein, 646 So. 2d
717, 720 (Fla. 1994), as clarified (Nov. 30, 1994) (“We do agree that, except as otherwise required by the constitution,
Florida recognizes a general standing requirement in the sense that every case must involve a real controversy as to
the issue or issues presented.”); see also Grigorian v. FCA US LLC, Case No. 19-15026, 2020 WL 7238392, at *2
(11th Cir. Dec. 9, 2020) (holding that the loss of time from listening to and researching an unsolicited voicemail did
not demonstrate a harm “sufficiently concrete to constitute an injury in fact”); see also Glasser v. Hilton Grand
Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020) (finding that Salcedo makes clear that even where a
statutory violation is alleged, a “real injury remains necessary”); Eldridge v. Pet Supermarket, Inc., Case No. 18-
22531, 2020 WL 1475094, at *6 (S.D. Fla. Mar. 10, 2020) (no standing where a plaintiff alleged that “texts ‘invaded
[his] privacy, intruded upon his seclusion and solitude, wasted his time by requiring him to open and read the
messages, depleted his cellular telephone battery, and caused him to incur a usage allocation deduction to his text
messaging or data plan.”); Fenwick v. Orthopedic Specialty Institute, PLLC, Case No. 0:19-cv-62290-Ruiz/Strauss,
2020 WL 913321 at *4(S.D. Fla, Feb, 4, 2020) (Strauss, M_1.\ (recommending that receint of three text messages did
not establish an injury-in-fact for purposes of Article III standing).
19

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BRODSKY FOTIU-WOJTOWICZthe racketeering activity and the injury can be neither remote, purely contingent, nor indirect”);
Bortell y. White Mountains Ins. Group, Ltd., 2 So. 3d 1041, 1047 (Fla. 4th DCA 2009) (“Indirect
harm is insufficient”); Dorestin v. Hollywood Imps., Inc., 45 So. 3d 819, 824 (Fla 4th DCA 2010)
(“Proof of actual damages is necessary to sustain a FDUTPA claim.”); Jovine v. Abbott
Laboratories, Inc., 795 F. Supp. 2d 1331, 1344 (S.D. Fla. 2011) (dismissing claim for failure to
plead actual damages). In any event, the Supreme Court has emphasized that pleading entitlement
to minimum or nominal damages for a statutory violation, without more, is insufficient to establish
standing. See, e.g., Uzuegbunam, 141 S. Ct. at 802 (holding that request for nominal damages does
not “guarantee[] entry to court.... It remains for the plaintiff to establish the other elements of
standing (such as a particularized injury); plead a cognizable cause of action, ... and meet all other
relevant requirements.”).

In Count I, Plaintiff purports to bring a claim for operation of an illegal lottery under section
849.09, Florida Statutes, as a predicate act under Florida RICO. See Fla. Stat. § 772.102(1)(a)31.
But Plaintiff alleges no injury, only entitlement to “minimum damages of $200.00.” (Am. Compl.
at {J 78-82.) In Count IV, Plaintiff purports to state a claim for violation of FDUTPA (again citing
section 849.09 as a predicate act). But again, Piaintitt does not allege an injury, oniy an unspecitied
“loss.” (Id. at | 95.) These allegations of injury come nowhere near establishing standing to pursue
these statutory claims. (See Ex. E at p. 5.) Accordingly, the Complaint should be dismissed for
lack of standing.

The bottom line is this. Despite filing three boilerplate and virtually identical Complaints
in three separate Florida Courts, Plaintiff and her counsel have yet to convince even one Court

that there is standing under these circumstances. This Court has already ruled on this issue as to

Alava Calline aud ac with Hat alain all olaime anaiuct Vafluica chanld ha diomicoad with
ALENG COWS Gna, GS Wink Wie Citi, Ge Cetus Ggdiise angeuige sndiad ve Gasmussca Wie

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BRODSKY FOTIU-WOJTOWICZprejudice. See also Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So. 2d 1004, 1005-06 (Fla.

3d DCA 1997) (affirming trial court’s entry of summary judgment in favor of defendants on
standing because “plaintiffs must have standing in order to be able to proceed with the class
action”).

TY IN ADDITION, PLA

  

A CLAIM.

Setting aside the absence of personal jurisdiction, Plaintiff's lack of standing and the class-
action allegations, Plaintiff fails to plead any of her claims with the well-pleaded facts required
under the Florida Rules of Civil Procedure. Indeed, in many cases, Plaintiff fails entirely to plead
the elements of her common law claims. Each of those claims can independently be dismissed for
the reasons set for below.

A. Legal Standard.

To survive a motion to dismiss under Rule 1.140(B)(6), a claim must contain allegations
of ultimate facts supporting each of the necessary elements of the claim. See Valdes v. GAB Robins
N. Am., Inc., 924 So. 2d 862, 865 (Fla. 3d DCA 2006); Bankers Tr. Realty, Inc. v. Kluger, 672 So.
2d 897, 898 (Fla. 3d DCA 1996). The complaint “must set forth factual assertions that can be
supported by evidence which gives rise to legal liability. It is insufficient to plead opinions,
theories, legal conclusions or argument.” Barrett v. City of Margate, 743 So. 2d 1160, 1163 (Fla.
4th DCA 1999). “The policy underlying this pleading requirement is well established, ‘that
litigants at the outset of a suit must be compelled to state their pleadings with sufficient
particularity for a defense to be prepared.” Marriott Int'l, Inc. v. Am. Bridge Bahamas, Ltd., 193
So. 3d 902, 909 (Fla. 3d DCA 2015) (citing Arky, Freed, Stearns, Watson, Greer, Weaver &
Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)). Accord Horowitz v. Laske,

855 So. 2d 169, 172-73 (Fla. 5th DCA 2003) (“Florida’s pleading rule forces counsel to recognize
21

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BRODSKY FOTIU-WOJTOWICZthe elements of their cause of action and determine whether they have or can develop the facts
necessary to support it, which avoids a great deal of wasted expense to the litigants and
unnecessary judicial effort.”).

B. Plaintiff has failed to state a claim under Florida law for Influize’s
purported operation of an “illegal” Florida lottery.

i. Section 772.104 requires Plaintiff to allege, inter alia, a pattern of
criminal activity and actual injury.

Section 849.08 is a criminal statute that makes it a crime to “set up, promote, or conduct
any lottery for money or for anything of value.” Fla. Stat. § 849.09.° It does not provide a private
cause of action. Thus, any civil claim for violations of section 849.09 must be pursued under
Florida’s Civil Remedies for Criminal Practices Act.° See Fla. Stat. § 772.101, et seg. Section
772.104 provides civil remedies for a plaintiff who proves by clear and convincing evidence a
violation of section 772.103, Florida’s Racketeer Influenced and Corrupt Organizations Act
(“RICO”). Section 772.103(1) provides that is unlawful for any person “[w]ho has with criminal
intent received any proceeds derived ... from a pattern of criminal activity . . . to use or invest. .
. any part of such proceeds . . . in the establishment or operation of any enterprise. Id. (emphasis
added.).

The term “criminal activity” means to commit or to attempt to, conspire to, or solicit,
coerce, or intimidate another to commit certain expressly-enumerated crimes. Section 849.09 is

among them. Fla. Stat. § 772.102(1)(a)(3 1). But a “pattern of criminal activity” requires allegations

> A lottery requires a prize, an award by chance, and consideration. See Florida Op. Atty.Gen., 061-5, Jan.
16, 1961 (free bingo games for tourists for prizes lacked consideration).

© Count I also lists Section 894.094 of the Florida Statutes, titled, “Game promotion in connection with sale
of consumer products or services.” But Plaintiff cannot state a claim under that section because it is not a
“criminal activity” under section 772.102. Further, as argued infra, Plaintiff does not allege facts to

establish a violation of section 894.094.
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BRODSKY FOTIU-WOJTOWICZof “at least two incidents of criminal activity that have the same or similar intents, results,
accomplices, victims, or methods of commission or that otherwise are interrelated by
distinguishing characteristics and are not isolated incidents...” Fla. Stat. § 772.102(4). And an
“enterprise” requires a plaintiff to plead the existence of “any individual, . . . corporation, or other
legal entity, or any . . . group of individuals associated in fact.” Fla. Stat. § 772.102(3).

Florida’s RICO statute requires allegations of “ongoing criminal behavior” that are similar
and interrelated.” See Landmark Bank, N.A. v. Cmty. Choice Fin., Inc., 17-60974- CIV, 2017 WL
4310754, at *17 (S.D. Fla. Sept. 28, 2017) (quoting Ginsberg, 645 So. 2d at 501; citing State v.
Lucas, 600 So. 2d 1093, 1094 (Fla. 1992).) Where crimes are not alleged to be ongoing,
“[p]redicate acts extending over a few weeks or months and threatening no future criminal conduct
do not satisfy this requirement.” Jd. (citing Lucas, 600 So. 2d at 1094.) Moreover, an individual
defendant, or the same person referred to by a different name, cannot constitute an “enterprise.”
See Palmas Y Bambu, S.A. v. E.1. Dupont De Nemours & Co., Inc., 881 So. 2d 565 (Fla. 3d DCA
2004).

Finally, a plaintiff must show an actual injury to business or property directly caused by
the RICO violation. Borteli v. White Mountains ins. Group, Ltd., 2 So. 34 1041, i047 (Fia. 4th
DCA 2009) (“Indi