The Defendants argue that Florida courts uniformly hold that contractual privity between the plaintiff and the defendant is required to maintain both breach of express warranty claims and breach of implied warranty claims, citing Fields v. Mylan Pharmaceuticals, Inc., 751 F.Supp.2d 1257, 1259 (N.D.Fla.2009); T.W.M. v. American Medical Systems, Inc., 886 F.Supp. 842, 844 (N.D.Fla.1995); and O'Connor v. Kawasaki Motors Corp., U.S.A., 699 F.Supp. 1538, 1543–44 (S.D.Fla.1988). Further, the Defendants argue that since the Plaintiff has failed to allege that she purchased the Steam Vac directly from the Defendants, the Plaintiff has failed to plead the requisite element of privity for a breach of express or implied warranty action, and thus such an action should be dismissed.

Under Florida law, the plaintiff must be in privity of contract to recover under throries 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)). "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.

Id. at 1267. The court found Wrigley unpersuasive and relied instead on T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995) for the proposition that all breach of warranty claims require privity. Hoover, 889 F. Supp. 2d at 1267.

Specifically, they argue that Plaintiffs allege that they bought the products from Publix, Whole Foods, and Trader Joe's supermarkets, and argue that Florida law requires privity of contract with the defendant in order to recover on express and implied warranty claims. (Id. (citing T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D.Fla.1995) ; Weiss v. Johansen, 898 So.2d 1009, 1011 (Fla.Dist.Ct.App.2005) ).) Defendants further argue that the express warranty claim must be dismissed because Plaintiffs failed to allege that Defendants made statements amounting to “an affirmation of fact or promise.”

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).

Godelia v. Doe 1, 881 F.3d 1309, 1321 (11th Cir. 2018) (comparing T.W.M. v. Am. Med. Sys., 886 F.Supp. 842, 844 (N.D. Fla. 1995) (stating that privity is required for all express warranty claims), with Smith, 663 F.Supp.2d at 1342-43 (recognizing that privity may not be required for all express warranty claims)). Godelia held that even if court assumed privity was required, it had sufficiently been pled by allegations the plaintiff contracted directly with the manufacturer.

T.W.M. v. American Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995); Douse v. Boston Sci. Corp., 314 F.Supp.3d 1251, 1261-62 (M.D. Fla. 2018) (privity requirement satisfied by “substantial direct contacts” between buyer and manufacturer). In general, “[n]o privity exists, and a breach of warranty claim fails, where plaintiff did not purchase the product from the defendant.”

Although the complaint states Mr. Stanziano “was in privity with Genzyme throughout his treatment with his Genzyme case coordinator as well as being registered in the Genzyme sponsored Fabry Registry,” the complaint does not allege that he and Genzyme had a buyer-seller relationship. See id. (“A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant” (quoting T.W.M.v.Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995).); cf. id.