Case No. 3:14-cv-1154-J-32MCR.

DANIEL FINERMAN, etc., Plaintiff, v. MARRIOTT VACATIONS WORLDWIDE CORP., etc., et al., Defendants.

United States District Court, M.D. Florida, Jacksonville Division.

September 15, 2015.

Attorney(s) appearing for the Case

Daniel Finerman, Plaintiff, represented by John Allen Yanchunis, Sr. , Morgan & Morgan, PA.

Marriott Vacations Worldwide Corporation, Defendant, represented by David E. Sellinger , Greenberg Traurig LLP, Dawn Ivy Giebler-Millner , Greenberg Traurig, LLP & Philip R. Sellinger , Greenberg Traurig LLP.


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).1

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. See Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). The "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[N]aked assertions devoid of further factual enhancement" are not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).

II. Discussion

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 . . . ." Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citation omitted). There is "an exception, however, in cases in which a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss." Id. (citations omitted). A document is "central" to the claim where the plaintiff "would have had to offer the document in order to prove its case." Id. at 1285. Here, that does not seem to be the case. Finerman's complaint does not mention the website pages, nor does he claim that Marriott's billing statement failed to advise him about additional fees— his complaint alleges that the fees Marriott billed were fabricated or inflated. Whether Marriott or the booking agent or the cruise line actually retained the fees is not a matter that can be resolved on this motion. Marriott may well rely on the evidence attached to its motion to defend Finerman's claims, but the Court cannot consider it in ruling on a motion to dismiss his complaint under Rule 12(b)(6).

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." Galstaldi v. Sunvest Comm., USA, LLC, 637 F.Supp.2d 1045, 1056 (S.D. Fla. 2009) (citation omitted). Courts are divided as to whether a FDUTPA claim must be pled with particularity. Compare Galstaldi, 637 F.Supp.2d at 1057 ("The requirements of Rule 9(b) do not apply to claims under the FDUTPA.") and Guerrero v. Target Corp., 889 F.Supp.2d 1348, 1355 (S.D. Fla. 2012) ("Because FDUTPA was enacted to provide remedies for conduct outside the reach of traditional common law torts like fraud, `the plaintiff need not prove the elements of fraud to sustain an action under the statute.'") (quoting Galstaldi, 637 F.Supp.2d at 1056), with Stires v. Carnival Corp., 243 F.Supp.2d 1313, 1322 (M.D. Fla. 2002) (directing plaintiff to replead FDUTPA damages with particularity) and D.H.G. Properties, LLC v. Ginn Companies, LLC, Case No. 3:09-cv-735-J-34JRK, 2010 WL 5584464 at *5 (M.D. Fla. Sept. 28, 2010) (holding plaintiff's FDUTPA claim sounded in fraud and was subject to Rule 9(b)). See also Nationwide Mut. Co. v. Ft. Myers Total Rehab Ctr., Inc., 657 F.Supp.2d 1279, 1290 (M.D. Fla. 2009) (discussing split of authority).

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." Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quotation and citation omitted). Rule 9(b)'s particularity requirement "is satisfied if the complaint sets forth (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud." Id. (quotation and citation omitted). Finerman has alleged that when he booked a specific cruise through Marriott, he was billed for $566.17 in government and port fees by Marriott, he inquired about the fees with Marriott, and Marriott and/or its agent collected and retained these fees that were either inflated or not owed and which were not paid to the government or the port. See Doc. 2 (Complaint) at ¶¶ 15, 17, 18, 19, 20, 35, 36, 37. Even if a heightened pleading standard is warranted, the Court finds Finerman's allegations satisfy it.

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." State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 427 F. App'x 714, 722 (11th Cir. 2011), rev'd in part sub nom., State Farm Mut. Auto. Ins. Co. v. Williams, 564 F. App'x 665 (11th Cir. 2014) (citing Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998)). However, while there is authority holding that this same rule applies when the equitable claim is for unjust enrichment, see, e.g., Martinez v. Weyerhaeuser Mortg Co., 959 F.Supp. 1511, 1518-19 (S.D. Fla. 1996) (holding that failure to plead lack of legal remedy was basis in and of itself to dismiss claim for unjust enrichment); Am. Honda Motor Co. v. Motorcycle Info. Network, Inc., 390 F.Supp.2d 1170, 1178 (M.D. Fla. 2005) (citing Martinez and holding that equitable remedy of unjust enrichment was not available where FDUTPA claim was pled as well), another line of cases hold that the general rule "does not apply to unjust enrichment claims." State Farm, 427 F. App'x at 722; accord United Surgical Assistants, LLC v. Aetna Life Ins. Co., Case No. 8:14-cv-211-T-30MAP, 2014 WL 5420801 at *4 (M.D. Fla. Oct. 22, 2014); Mobil Oil Corp. v. Dade County Esoil Mgmt. Co., Inc., 982 F.Supp. 873, 880 (S.D. Fla. 1997); Williams, 725 So.2d at 400.2 These latter cases hold that "[i]t is only upon a showing that an express contract exists between the parties that the unjust enrichment . . . count fails." State Farm, 427 F.App'x at 722 (quoting Williams, 725 So.2d at 400)). Thus, "[u]ntil an express contract is proven, a motion to dismiss a claim for . . . unjust enrichment on these grounds is premature." Mobil Oil, 982 F.Supp. at 880. The Court is persuaded by the reasoning of these latter cases. Here, there is no allegation that the conduct supporting the unjust enrichment claim arises out of a contract relating to the payment of the alleged overcharge; thus, dismissal of this claim is unwarranted at this time.

III. Conclusion

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 denied.3 Marriott Vacations Worldwide Corp. shall file its answer to plaintiff's complaint no later than October 15, 2015.

2. The parties shall file their Case Management Report (the form of which is attached hereto) no later than October 15, 2015 and shall include proposed dates for class certification motion practice.4



Plaintiff(s), v. Case No. Defendant(s).


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):

DEADLINE OR EVENT AGREED DATE Mandatory Initial Disclosures (pursuant to Fed.R.Civ.P. 26(a)(1)) [Court recommends 30 days after CMR meeting] Certificate of Interested Persons and Corporate Disclosure Statement [all parties are directed to complete and file the attached] Motions to Add Parties or to Amend Pleadings Disclosure of Expert Reports Plaintiff: Defendant: Discovery Deadline [Court recommends 5 months before trial to allow time for dispositive motions to be filed and decided; all discovery must be commenced in time to be completed before this date] Dispositive and Daubert Motions [Court requires 4 months or more before trial term begins] Trial Term Begins (month, year) [Local Rule 3.05 (c)(2)(E) sets goal of trial within 1 year of filing complaint in most Track Two cases, and within 2 years in all Track Two cases; trial term must not be less than 4 months after dispositive motions deadline (unless filing of such motions is waived). Trials before the District Judge will generally be set on a rolling trial term toward the beginning of each month, with a Final Pretrial Conference to be set by the Court the preceding month. If the parties consent to trial before the Magistrate Judge, they will be set for a date certain after consultation with the parties] Estimated Length of Trial [trial days] Jury/Non-Jury Mediation Deadline: Mediator: Address: Telephone: [Mediation is mandatory in most Track Two cases; Court recommends either 2-3 months after CMR meeting, or just after discovery deadline; if the parties do not so designate, the Court will designate the mediator and the deadline for mediation. A list of certified mediators is available on the Court's website and from the Clerk's Office.] All Parties Consent to Proceed Before Magistrate Judge Yes ____ No ____ If yes, the parties shall complete and all counsel and/or unrepresented parties shall execute the attached Form AO-85.

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:

Name Counsel for (if applicable) _______________________________________ _________________________________ _______________________________________ _________________________________ _______________________________________ _________________________________

II. Preliminary Pretrial Conference

Local Rule 3.05(c)(3)(B) provides that preliminary pretrial conferences are mandatory in Track Three cases.

Track Two cases: Parties (check one) [__] request [__] do not request a preliminary pretrial conference before entry of a Case Management and Scheduling Order in this Track Two case. Unresolved issues to be addressed at such a conference include:

____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________

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 fourteen (14) days from that party's first appearance a Certificate of Interested Persons and Corporate Disclosure Statement using the attached mandatory form. No party may seek discovery from any source before filing and serving a Certificate of Interested Persons and Corporate Disclosure Statement. All papers, including emergency motions, are subject to being denied or stricken unless the filing party has previously filed and served its Certificate of Interested Persons and Corporate Disclosure Statement. Any party who has not already filed and served the required certificate is required to do soimmediately. Each party has a continuing obligation to file and serve an amended Certificate of Interested Persons and Corporate Disclosure Statement within eleven days of 1) discovering any ground for amendment, including notice of case reassignment to a different judicial officer; or 2) discovering any ground for recusal or disqualification of a judicial officer. A party should not routinely list an assigned district judge or magistrate judge as an "interested person" absent some non-judicial interest.

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. See Local Rule 3.03 (e). In propounding and responding to discovery, the parties are directed to consult and comply with the Federal Rules of Civil Procedure, the Local Rules of the United States District Court for the Middle District of Florida, and the Middle District of Florida's Discovery Handbook. Each party shall timely serve discovery requests so that the rules allow for a response prior to the discovery deadline. The Court may deny as untimely all motions to compel filed after the discovery deadline. In addition, the parties agree as follows: _______________________________________________________ _____________________________________________________________________

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. See Local Rule 4.15. Each confidentiality agreement or order shall provide, or shall be deemed to provide, that "no party shall file a document under seal without first having obtained an order granting leave to file under seal on a showing of particularized need." With respect to confidentiality agreements, the parties agree as follows: ______________________________________________________ ____________________________________________________________________

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: ____________________________________________________________________ ____________________________________________________________________

V. Mediation

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 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): ____________________________________________________________________ ____________________________________________________________________ __________________________________________________________________

Date: _____________________

Signature of Counsel (with information required by Local Rule 1.05(d)) and Signature of Unrepresented Parties.

____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________


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:

[insert list]

2.) the name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings:

[insert list]

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:

[insert list]

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:

[insert list]

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.

[Date] ________________________________________ [Counsel of Record or Pro Se Party] [Address and Telephone] [Certificate of Service]


1. Defendants removed the case from state court on the basis of the Class Action Fairness Act. See 28 U.S.C. § 1332(d)(2), 1453(a). See Notice of Removal, Doc. 1 at ¶¶ 8-18.
2. See also Hill v. Hoover Co., 899 F.Supp.2d 1259, 1268 (N.D. Fla. 2012) (discussing disagreement among courts as to whether the existence of an adequate legal remedy precludes pleading a claim of unjust enrichment; following authority of Eleventh Circuit's unpublished State Farm decision to hold that it does not).
3. The Court may choose to revisit these legal issues at a later stage of the case.
4. The Court delayed motion practice on class certification and the filing of a Case Management Report pending resolution of this motion (which was itself delayed while the Court inquired about the status of a related, and now dismissed, case by Finerman against Carnival Corporation). See Docs. 26, 36, 37.


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