United States District Court, M.D. Florida, Fort Myers Division
GLENN R. BAKER, Plaintiff,
BRUNSWICK CORPORATION, MARINEMAX EAST, INC. and BOSTON WHALER, INC., Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion to
Dismiss (Doc. 39) filed on March 27, 2018. Plaintiff filed a
Response in Opposition (Doc. 40) on April 10, 2018. For the
reasons set forth below, the Motion is granted in part and
denied in part.
Glenn R. Baker sues Defendants for their failure to honor
their warranties and repair his defective boat. Because
repairs were unsuccessful, Plaintiff attempted to rescind the
purchase, which Defendants refused. The Court previously
dismissed the Amended Complaint (Doc. 18) as a shotgun
pleading because Plaintiff lumped Defendants together under
each count. (Doc. 34). In that Opinion and Order, the Court
deferred ruling on Defendants' argument that
Plaintiff's warranty claims failed for lack of privity,
and encouraged the parties to review a recent published
opinion from the Eleventh Circuit on that issue. Godelia
v. Doe 1, 881 F.3d 1309 (11th Cir. 2018). Plaintiff
filed a Second Amended Complaint (Doc. 35) on February 26,
2018. Defendants again move to dismiss due to the continued
insufficiency of the pleading, and lack of privity.
reviewing a Motion to Dismiss, the Court accepts
Plaintiff's factual allegations as true and takes them in
a light most favorable to Plaintiff. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). Thus,
Plaintiff's Second Amended Complaint (Doc. 35) alleges:
Defendant Boston Whaler designs, manufactures, and markets
the 35-foot Boston Whaler Outrage, which is the vessel Baker
purchased. (Id., ¶¶ 6-7). Defendant
Brunswick, through its Mercury Marine Division, manufactured
part of the vessel, including its engine. (Id.,
¶ 10). Defendant MarineMax, acting as a dealer and agent
of Boston Whaler and Brunswick, sold the vessel to Plaintiff.
(Id., ¶ 12).
about May 8, 2015, Baker purchased his 35-foot Boston Whaler
Outrage from MarineMax, a dealer, representative, and agent
of Brunswick and Boston Whaler for approximately $500, 000.
(Doc. 35, ¶ 18). Through its marketing materials, Boston
Whaler marketed and represented that the joystick piloting
system in Plaintiff's vessel provided “effortless
docking and ultimate confidence when cruising even the
roughest ocean waves.” (Id., ¶ 2). Baker
relied on these and other representations when purchasing the
vessel. (Id., ¶ 3). At the time of sale,
MarineMax provided Baker with an executed Purchase Agreement,
on behalf of itself, Boston Whaler, and Brunswick.
(Id., ¶ 19; Doc. 35-1). The back of the
Purchase Agreement reads, in part: “MANUFACTURER'S
WARRANTY. The boat, motor and accessories sold pursuant to
this agreement are only subject to applicable
manufacturer's warranties, if any, except, as otherwise
expressly provided in this agreement.” (Doc. 35-1, p.
3). With the Purchase Agreement, MarineMax provided Baker
with a copy of an express limited warranty by Boston Whaler
(Doc. 35-3) and a Product Protection Plan and Benefits from
“Mercury Marine Division of Brunswick
Corporation.” (Doc. 35-2).
days before the delivery of the vessel to Plaintiff, a Notice
of Recall of the boat's steering system had been issued;
yet, Defendants failed to disclose this to Plaintiff prior to
the purchase. (Doc. 35, ¶ 23). Plaintiff has attached
copies of the recall notice to his Second Amended
Complaint. (Docs. 35-4, 35-5). Initially, the recall
notice stated there was a manufacturing defect in the
engine's steering cylinder sensor, which could lead to a
loss of steering. (Doc. 35-4). In a later letter from
Brunswick to Plaintiff, Brunswick stated that the problem was
with the power steering pump intermittently shutting down.
(Doc. 35-5). Defendants had notice that the steering system
was defective and of the recall notice at the time of the
purchase but did not notify Plaintiff until three weeks after
delivery of the vessel. (Doc. 35, ¶ 26).
about December 2015, the steering system failed while
Plaintiff was using the boat, and has continuously failed
despite repeated attempts to repair the defective system with
participation by all three Defendants. (Doc. 35, ¶ 27).
MarineMax, as an agent of Brunswick and Boston Whaler,
undertook to repair the vessel under warranty on several
occasions from December 2015 until April 2017. (Id.,
14, 2017, Baker was told by John Foster, a representative of
Boston Whaler and/or Brunswick, that: (1) it was a high
priority to make Baker's boat work properly; (3) they had
finally determined the root cause of the problems; (3) the
redesigned parts for the ultimate fix were being sent out;
and (4) Baker's boat would be given priority. (Doc. 35,
¶ 30). Mr. Foster's statements were confirmed in a
phone call from another representative of Boston Whaler
and/or Brunswick in Wisconsin. (Id., ¶ 31).
Notwithstanding these representations, none of the statements
turned out to be true at the time they were made.
(Id., ¶ 32). Following this meeting, Baker took
his boat back to MarineMax and was told by MarineMax
representatives that new parts had been received and the
defective parts would be replaced with working parts.
(Id., ¶ 33). But the vessel failed again in
open waters after this replacement, with Baker's family
on board. (Id., ¶ 34).
of the continuing unresolved issues with the steering system
and the numerous breakdowns in transit through the Gulf of
Mexico and international waters, Baker returned the vessel to
MarineMax in August 2017 and asked for a rescission of the
sale and related damages. (Doc. 35, ¶ 35). Defendants
refused. The boat remains unfit for Plaintiff's use.
(Id., ¶ 40).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint 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). This obligation
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation omitted). In addition, to
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the factual allegations
must be “plausible” and “must be enough to
raise a right to relief above the speculative level.”
Id. at 555; see also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Like its
counterpart above, Rule 12(b)(6) requires more than
accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). But, “[l]egal conclusions without
adequate factual support are entitled to no assumption of
truth.” Mamani v. Berzain, 654 F.3d 1148, 1153
(11th Cir. 2011) (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Factual allegations
that are merely consistent with a defendant's liability
[also] fall short of being facially plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337
(11th Cir. 2012) (internal citations omitted). The Court
engages in a two-step approach: “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S.
is proceeding on a thirteen-count Second Amended Complaint
(Doc. 35), raising claims against all Defendants under the
Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2310,
et seq., for breach of express and implied warranty,
and under the Florida Deceptive and Unfair Trade Practices
Act (FDUTPA). Plaintiff also asserts a state law claim for
false marketing/promotion against Boston Whaler only.
Magnuson Moss, Express Warranty Claims v. Brunswick and
Boston Whaler (Counts 2, 3, 5, 6)
argue that the express warranty claims against Brunswick and
Boston Whaler fail because there is no privity of contract
between themselves and Plaintiff. The Magnuson Moss Warranty
Act (MMWA) provides a separate “statutory cause of
action to consumers ‘damaged by the failure of a
supplier, warrantor, or service contractor to comply with
[any obligation imposed by the Act] or under a written
warranty, implied warranty or service contract.'”
Cunningham v. Fleetwood Homes of Ga., Inc., 253 F.3d
611, 617-18 (11th Cir. 2001) (quoting 15 U.S.C. §
2310(d)(1)). Under any MMWA claim, whether privity is
required, and the meaning and creation of any warranty,
hinges on applicable state law. Gill v. Blue Bird Body
Co., 147 Fed.Appx. 807, 810 (11th Cir. 2005).
Godelia v. Doe 1, the Eleventh Circuit discussed
whether a claim for breach of express warranty requires
privity of contract between the parties under Florida law,
stating: “Our review of Florida law reveals no clear
rule about whether privity is required in every Florida
express warranty claim.” 881 F.3d at 1321
(comparingT.W.M. v. Am. Med. Sys., 886
F.Supp. 842, 844 (N.D. Fla. 1995) withSmith v.
Wm. Wrigley Jr. Co., 663 F.Supp.2d 1336, 1342-43 (S.D.
Fla. 2009)). There, the court ...