United States District Court, M.D. Florida, Orlando Division
E. MENDOZA UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
Breach of Contract
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.
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.
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
Restitution and Disgorgement and Unjust Enrichment
claims for unjust enrichment and restitution and disgorgement
are premised on Defendant's alleged violation of section