Pursuant to Florida law, the plaintiff must be in privity of contract to recover under theories of breach of express or implied warranties. T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (citing Kramer v. Piper Aircraft Corp., 520 So. 2d 37 (Fla. 1988); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)); see also Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005) (stating that "in order to recover for the breach of a warranty either express or implied, the plaintiff must be in privity of contract with the defendant"). "A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant."

As a preliminary matter, “[t]he law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant.” T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995) (internal citations omitted).

Because Alea does not allege that he purchased the bat directly from Wilson, his implied warranty claim fails. See Hill v. Hoover Co., 899 F. Supp. 2d 1259, 1267 (N.D. Fla. 2012) (dismissing a breach of implied warranty claim under Florida law because the plaintiff "failed to allege that she purchased the [product] directly from the Defendants, but rather, specifically alleged that she purchased the [product] from a third-party retailer"); T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) ("A plaintiff who purchases a product but does not buy it directly from the defendant, is not in privity with the defendant."). The law of express warranty is murkier.

Defendants argue that Plaintiff has failed to state a claim for breach of warranty because such a claim requires privity between the plaintiff and defendant. E.g., T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) ("Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties." (quoting Intergraph Corp. v. Stearman, 555 So. 2d 1282, 1283 (Fla. Dist. Ct. App. 1990)).

If there is a contractual relationship with the manufacturer, the vehicle of implied warranty remains.Id. at 91; see also T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995) (in order to recover under breach of express or implied warranty the plaintiff must be in privity of contract with the defendant). "A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant." T.W.M., 886 F.Supp. at 844.

Florida and Minnesota law differ on the issue of privity — here, Florida law requires privity to maintain a breach of warranty action while Minnesota law does not. Compare T.W.M. & S.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995) ("The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant.") with Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 357 (Minn. 1977) (stating that "the absence of privity would not bar" breach of warranty claims)

Amoroso v. Samuel Friedland Family Enterprises, 604 So.2d 827, 833 (Fla. 4th DCA 1992); see also Weiss v. Johansen, 898 So.2d 1009, 1012 (Fla. Dist. Ct. App. 2005). As the court explained in T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842 (N.D. Fla. 1995): The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant.

DE 20 at 9. Defendant cites case law for the propositions that "to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant," T.W.M. v. American Medical Sys., 886 F. Supp. 842, 844 (N.D. Fla. 1995), and "[p]rivity is required even if suit is brought against a manufacturer." Tolliver v. Monaco Coach Corp., No. 06-CV-856, 2006 WL 1678842 (M.D. Fla. June 16, 2006).

Amoroso v. Samuel Friedland Family Enterprises, 604 So.2d 827, 833 (Fla. 4th DCA 1992); see also Weiss v. Johansen, 898 So.2d 1009, 1012 (Fla. Dist. Ct. App. 2005). As the court explained in T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842 (N.D. Fla. 1995): The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant.

The recipient of an implant is not in privity with the manufacturer when the implant is purchased by the plaintiff's medical provider."). Indeed, as I held on similar facts in T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995): A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant.