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Cross v. Point And Pay, LLC

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

March 31, 2017

DAVID CROSS, Plaintiff,
v.
POINT AND PAY, LLC, Defendant.

          ORDER

          CARLOS E. MENDOZA UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Defendant's Motion to Dismiss (Doc. 13) and Plaintiff's Response thereto (Doc. 21). As set forth below, the motion will be granted in part and denied in part.

         I. Background

         Plaintiff alleges that Defendant is a money transmitter that processes online bill payments for clients, including the City of St. Cloud (the “City”). (Compl., Doc. 1, ¶ 16). According to Plaintiff, Defendant advertises its services via its clients, which Plaintiff alleges are acting as Defendant's agents. (Id. ¶¶ 19, 28, 32). As relevant here, Defendant is alleged to have advertised that it would process online payments for $1.50 per $50. (Id. ¶ 46). Plaintiff was charged $6.00 for his payment of $189.77, (id. ¶ 48); Plaintiff alleges that he should have only been charged $4.50 (arguing that the additional $1.50 could only be added for full $50 increments) or, alternatively, $5.69 (arguing that the fee should have been pro-rated), (id. ¶¶ 50-51). Thus, Plaintiff alleges that he was overcharged either $1.50 or $0.31, respectively. (Id.).

         Plaintiff alleges claims for breach of contract (Count I), disgorgement and restitution (Count II), unjust enrichment (Count III), and violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq., (Counts IV and V). Defendant moves to dismiss all claims for failure to state a claim.

         II. Motion to Dismiss Standard

          “A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” In determining whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and construes them in a light most favorable to the non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Generally, in deciding a motion to dismiss, “[t]he scope of the review must be limited to the four corners of the complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).

         III. Analysis

         A. Breach of Contract

         Plaintiff alleges that Defendant made an offer to process Plaintiff's online payment for $1.50 per $50, which Plaintiff accepted, creating a contract between the parties. Plaintiff then alleges that Defendant charged Plaintiff a higher price for the service, breaching the contract. For purposes of this argument, Defendant assumes that it made an offer as alleged by Plaintiff, but Defendant argues that Plaintiff never actually accepted that offer. Instead, Defendant argues that Plaintiff accepted the offer to pay a $6.00 processing fee for facilitating the payment of his $189.77 bill. In support of this argument, Defendant attaches an affidavit of its representative, averring that the online bill pay service it provides for the City requires the payee to check a box agreeing to the terms of the convenience fee after the payee is informed of the total fee. Defendant asks the Court to accept Defendant's evidence to contradict the allegations in Plaintiff's Complaint. Defendant's argument is inappropriate at this stage in the litigation.

         Defendant also argues that Plaintiff's breach of contract claims should be dismissed pursuant to Florida's voluntary payment doctrine. “The voluntary payment doctrine provides that ‘where one makes a payment of any sum under a claim of right with knowledge of the facts, such a payment is voluntary and cannot be recovered.'” Ruiz v. Brink's Home Sec., Inc., 777 So.2d 1062, 1064 (Fla. 2d DCA 2001) (quoting City of Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959)). As with Defendant's previous breach of contract argument, the Court cannot decide this issue at the motion to dismiss stage. First, “the voluntary payment doctrine is an affirmative defense that normally should not be considered on a motion to dismiss.” Schojan v. Papa John's Int'l Inc., 34 F.Supp.3d 1206, 1211 (M.D. Fla. 2014) (quotation omitted). Second, the application of the voluntary payment doctrine requires a determination that Plaintiff had knowledge of the facts at the time he made the payment. See Ruiz, 777 So.2d at 1064. Plaintiff's knowledge is an issue of fact that cannot be resolved on a motion to dismiss.

         Finally, Defendant appears to argue that Plaintiff alleges that the City, rather than Defendant, engaged in the subject advertising. However, Plaintiff clearly alleges that the City was acting on behalf of and as Defendant's agent. (Doc. 1 ¶¶ 28-33). Accordingly, Plaintiff's breach of contract claim will not be dismissed at this time.[1]

         B. Restitution and Disgorgement and Unjust Enrichment

         Plaintiff's claims for unjust enrichment and restitution and disgorgement are premised on Defendant's alleged violation of section ...


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