TIMOTHY J. CORRIGAN, District Judge.
Plaintiff Daniel Finerman is a Marriott Vacation Club timeshare owner. Owners may redeem points at various resorts and may also use them for other types of vacations, including cruises. Finerman and his wife booked a cruise using timeshare points. When it came time to pay, Finerman was charged $159.00 per person for port fees and $114.11 per person for government fees, amounts that could not be paid with points. Finerman alleges that the amounts charged were fabricated or inflated so he filed this class action lawsuit against Marriott Vacations Worldwide Corporation (Marriott Vacation Club's parent company, hereinafter, "Marriott") and International Cruise Excursion Gallery, Inc., which, Finerman alleges, handled the cruise bookings as Marriott Vacation Club's agent. Finerman seeks to represent the class of thousands of Marriott Vacation Club timeshare owners throughout the United States who he claims paid fabricated or inflated fees when booking cruises through defendants. In his two count complaint, Finerman alleges that defendants' actions violate Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) and constitute unjust enrichment. Finerman voluntarily dismissed his claims against International Cruise Excursion Gallery and this case is now before the Court on Marriott's Motion to Dismiss (Doc. 14) with supporting declaration (Doc. 15). Finerman filed a response in opposition (Doc. 30).
I. Standard of Review
When ruling on a motion to dismiss, the Court reviews the complaint assuming the facts as pled are true, and the Court construes those facts in the light most favorable to the plaintiff.
Marriott argues Finerman's complaint should be dismissed for the following reasons: 1) the complaint does not meet minimum pleading standards in that it alleges only conclusory allegations that are contradicted by documents that should have been attached to the complaint; 2) the documents that Marriott proffers reveal that another entity, not Marriott, billed Finerman for the fees; 3) Finerman cannot plausibly allege that Marriott engaged in deceptive or unfair practice if Marriott did not bill or collect the fees; 4) Finerman's FDUTPA claim was not pled with particularity as is required when alleging a deceptive practice; 5) the documents provided by Marriott show that Finerman cannot plausibly allege that he conferred a benefit on Marriott as is required to prove a claim of unjust enrichment; 6) Finerman cannot bring the equitable claim of unjust enrichment because he failed to allege that he did not have an adequate remedy at law; 7) Finerman cannot bring an unjust enrichment claim where his FDUTPA claim based on the same alleged conduct is due to be dismissed.
A. Can the Court consider other documents?
Several of Marriott's arguments hinge on its contention that documents referenced in Finerman's complaint demonstrate that Marriott did not collect the fees about which Finerman is complaining. Marriott has filed the declaration of L. Noriye Oto, a Vice President with International Cruise Excursion Gallery, Inc., which explains that company's role in booking cruises for Marriott timeshare owners. Attached to the declaration are copies of website pages that Finerman would have used to book the cruise and booking records which Marriott claims demonstrate that International Cruise Excursion Gallery, not Marriott, collected the fees. Because Finerman's complaint described the booking process, Marriott contends these documents can fairly be viewed by the Court as though they had been attached to the complaint.
The Court's review on a motion to dismiss under Rule 12(b)(6) is generally limited to "the face of the complaint and documents attached thereto . . . ."
B. Is the FDUTPA claim pled with sufficient particularity?
Marriott argues Finerman's FDUTPA claim must be dismissed because he has not alleged with sufficient particularity that Marriott engaged in deceptive practices as required by Federal Rule of Civil Procedure 9(b). FDUTPA makes unlawful "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." Fla. Stat. § 501.204(1). To state a claim under FDUTPA, plaintiff must plead "(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages."
Rule 9(b)'s requirement of particularity "serves an important purpose in fraud actions by alerting defendants to the precise misconduct with which they are charged and protecting defendants against spurious charges of immoral and fraudulent behavior."
C. Is the unjust enrichment count adequately pled?
Marriott contends that Finerman's unjust enrichment count must be dismissed because he failed to allege that he did not have an adequate remedy at law. The general rule is that "equitable remedies are not available under Florida law when adequate legal remedies exist."
The Court finds Finerman has stated claims under FDUTPA and for unjust enrichment. Accordingly, it is hereby
1. Defendant Marriott Vacations Worldwide Corp.'s Motion to Dismiss (Doc. 14) is
2. The parties shall file their Case Management Report (the form of which is attached hereto) no later than
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
CASE MANAGEMENT REPORT
The parties have agreed on the following dates and discovery plan pursuant to Fed.R.Civ.P. 26(f) and Local Rule 3.05(c):
I. Meeting of Parties
Lead counsel shall meet in person or, upon agreement of all parties, by telephone. (If all parties agree to conduct the case management conference by telephone, they may do so without filing a motion with the Court.) Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A), a meeting was held on ___________________ (date) at _________________ (time) and was attended by:
II. Preliminary Pretrial Conference
Local Rule 3.05(c)(3)(B) provides that preliminary pretrial conferences are
III. Pre-Discovery Initial Disclosures of Core Information Fed.R.Civ.P. 26(a)(1)(A)-(D) Disclosures
The parties (check one) [__] have exchanged [__] agree to exchange information described in Fed.R.Civ.P. 26(a)(1)(A)-(D) on or by _____________ (date).
IV. Agreed Discovery Plan for Plaintiffs and Defendants
A. Certificate of Interested Persons and Corporate Disclosure Statement
This Court makes an active effort to screen every case in order to identify parties and interested corporations in which the assigned judge may be a shareholder, as well as for other matters that might require consideration of recusal. Therefore, each party, governmental party, intervenor, non-party movant, and Rule 69 garnishee shall file and serve within
B. Discovery Plan/Deadline
The parties shall not file discovery materials with the Clerk except as provided in Local Rule 3.03. The Court encourages the exchange of discovery requests on diskette.
C. Confidentiality Agreements/Motions to File Under Seal
Whether documents filed in a case may be filed under seal is a separate issue from whether the parties may agree that produced documents are confidential. The Court is a public forum, and disfavors motions to file under seal. The Court will permit the parties to file documents under seal only upon motion and order entered under Local Rule 1.09.
The parties may reach their own agreement (without Court endorsement) regarding the designation of materials as "confidential." The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce appropriate stipulated and signed confidentiality agreements.
D. Disclosure or Discovery of Electronically Stored Information and Assertion of Claims of Privilege
Pursuant to Fed.R.Civ.P. 26(f)(3), the parties have made the following agreements regarding the disclosure and discovery of electronically stored information as well as the assertion of claims of privilege or protection of trial preparation materials after production: ____________________________________________________________________ ____________________________________________________________________
Absent a Court order to the contrary, the parties in every case will participate in Court-annexed mediation as detailed in Chapter Nine of the Court's Local Rules. The parties have agreed on a mediator from the Court's approved list of mediators as set forth in the table above, and have agreed to the date stated in the table above as the last date for mediation. The list of mediators is available from the Clerk, and is posted on the Court's web site at www.flmd.uscourts.gov. If the parties do not so designate, the Court will designate the mediator and the deadline for mediation.
VI. Requests for Special Handling
Requests for special consideration or handling (requests may be joint or unilateral): ____________________________________________________________________ ____________________________________________________________________ __________________________________________________________________
Signature of Counsel (with information required by Local Rule 1.05(d)) and Signature of Unrepresented Parties.
____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
I hereby disclose the following pursuant to this Court's interested persons order:
1.) the name of each person, attorney, association of persons, firm, law firm, partnership, and corporation that has or may have an interest in the outcome of this action — including subsidiaries, conglomerates, affiliates, parent corporations, publicly-traded companies that own 10% or more of a party's stock, and all other identifiable legal entities related to any party in the case:
2.) the name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings:
3.) the name of every other entity which is likely to be an active participant in the proceedings, including the debtor and members of the creditors' committee (or twenty largest unsecured creditors) in bankruptcy cases:
4.) the name of each victim (individual or corporate) of civil and criminal conduct alleged to be wrongful, including every person who may be entitled to restitution:
I hereby certify that, except as disclosed above, I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict.