United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN United States District Judge
case is before the Court on pending motions.
plaintiffs' motion for leave to file a Second Amended
Class Action Complaint (Doc. 72), to which defendants filed a
response in opposition (Doc. 74) and plaintiffs filed a reply
(Doc. 94) and additional supporting exhibits (Docs. 107 &
S-108), is granted. The Court finds plaintiffs have
demonstrated good cause for seeking to amend after the agreed
upon deadline because the parties' efforts were focused
on mediation. Further, the Court does not find the proposed
amendments to be futile, given that the standard for such a
determination is akin to that of a 12(b)(6) motion. See,
e.g., Chang v. JPMorgan Chase Bank, N.A.,
___F.3d___, 2017 WL 65371, at *3 (11th Cir. Jan. 6, 2017)
(reviewing whether proposed amendment was futile by
considering Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). On a Rule 56 motion for summary judgment the
Court would be permitted to consider the evidence upon which
defendants rely in arguing the futility of the amendments
(and of course would consider evidence put forward by
plaintiffs in opposing any such motion). In light of the
Court's decision to permit the filing of a second amended
complaint, plaintiffs' motion to compel answers to
plaintiffs' requests for admissions (Doc. 112) is
granted, (notwithstanding that defendant Marriott Ownership
Resorts, Inc. (“MORI”) has not yet had an
opportunity to respond), as the basis for MORI's
objections were that (in its view) the requests were related
to allegations of the as yet unfiled second amended
defendants' motion for partial summary judgment or, in
the alternative, to disqualify class representative Daniel
Finerman, and motion to dismiss unjust enrichment claim of
Donna Devino (Doc. 73), to which plaintiffs responded in
opposition (Doc. 96) and defendants filed a reply (Doc. 109)
is denied in all respects (and plaintiffs' motion to
defer consideration of this motion (Doc. 97), which
defendants opposed (Doc. 101) is therefore moot).
their motion for partial summary judgment, defendants argue
that Finerman could have avoided any damages by cancelling
his cruise. However, even if the avoidable consequences
doctrine applies to Finerman's FDUTPA and unjust
enrichment claims (which the Court need not decide for
purposes of deciding this motion), Finerman has presented
evidence that his other vacation options (including not
taking one at all) would not have served to mitigate his
damages, thus creating at least a genuine issue of disputed
fact on this point. The Court also rejects the argument that
Finerman's alleged knowledge of any overcharge vitiates
his claims, especially where he has presented evidence that
his other options left him in a worse position. Defendants
also contend that neither Finerman nor Donna Devino can
prevail on a claim for unjust enrichment because they do not
have evidence to show that either defendant kept any portion
of the disputed fee. But discovery is not yet over and, in
any event, if plaintiffs paid an amount the defendants should
have paid instead, then the defendants might have been
unjustly enriched even if they did not themselves retain the
sums plaintiffs paid. See, e.g., Aceto Corp. v.
TherapeuticsMD, Inc., 953 F.Supp.2d 1269, 1288-89 (S.D.
Fla. 2013). N.G.L. Travel Associates v. Celebrity
Cruises, Inc., 764 So.2d 672 (Fla. 3d DCA 2000) does not
hold otherwise. Finally, whether Finerman is an appropriate
class representative should await a determination on
plaintiffs' forthcoming motion for class
final points. First, the Court disapproves of plaintiffs'
practice of using footnotes for citations to legal
authorities that should be in the text. The small font is too
hard to read and it results in evading the Court's page
limitations. See, for example, Doc. 96. Future filings that
follow this practice will be stricken. Last, the Court is
concerned about the sniping going on in the parties'
papers. It is not helpful to the Court and reflects poorly on
it is hereby
Plaintiffs' Motion for Leave to File a Second Amended
Class Action Complaint (Doc. 72) is GRANTED. No later than
January 19, 2017 plaintiffs shall file their Second Amended
Class Action Complaint. Defendants shall respond no later
than February 10, 2017.
Defendants' Motion for Partial Summary Judgment or, in
the alternative, to Disqualify Daniel Finerman as Class
Representative, and Motion to Dismiss Unjust Enrichment Claim
of Plaintiff Donna Devino (Doc. 73) is DENIED.
Plaintiffs' Motion to Defer Consideration of
Defendants' Motion for Partial Summary Judgment, etc.
(Doc. 97) is MOOT.
Plaintiffs' Motion to Compel Answers to Plaintiffs'
Request for Admissions (Doc. 112) is GRANTED. MORI shall
serve answers to Plaintiffs' Requests for Admission no
later than February 13, 2017.
Although MORI has not yet had an opportunity to respond to
Plaintiffs' Motion to Compel Document Discovery (Doc.
113), the Court will TERMINATE the motion and direct the
parties to confer one more time to try to resolve the
outstanding discovery. Documents that MORI has agreed to
produce should be produced no later than
January 23, 2017; by that same date MORI
shall state whether it is withholding any responsive
materials. If the parties cannot work this out, plaintiffs
may renew their motion by February 6, 2017 and MORI shall
respond by February 21, 2017.
light of the new deadlines set forth above, and to put this
case on a realistic schedule, the Court sets the ...