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Baker v. Brunswick Corp.

United States District Court, M.D. Florida, Fort Myers Division

April 25, 2018

GLENN R. BAKER, Plaintiff,

          OPINION AND ORDER [1]


          This 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.


         Plaintiff 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.

         THE FACTS

         When 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).

         On or 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).

         Eight 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.[2] (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).

         On or 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.[3] (Id., ¶ 28).

         On June 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).

         Because 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).


         Under 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 “unadorned, the-defendant-unlawfully-harmed-me” accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In 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. at 679.


         Plaintiff 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.

         A. Magnuson Moss, Express Warranty Claims v. Brunswick and Boston Whaler (Counts 2, 3, 5, 6)

         Defendants 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).

         In 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 ...

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