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.

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.

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.”

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)

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).

"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." T.W.M. v. American Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D.Fla. 1995) (citing Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla. 1988) Intergraph Corp. v. Stearman, 555 So.2d 1282, 1283 (Fla.Dist.Ct.App. 1990)); Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376, 378 (Fla.Dist.Ct.App. 1991) ("A warranty, whether express or implied, is fundamentally a contract. A contract cause of action requires privity.") (quoting Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 692 (Fla.Dist.Ct.App. 1979)); Hernandez v. Coopervision, Inc., 691 So.2d 639, 641 (Fla.Dist.Ct.App. 1997) (dismissing claims for implied warranties of merchantability and fitness for purpose due to lack of privity).

" Our review of Florida law reveals no clear rule about whether privity is required in every Florida express warranty claim. Compare 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 v. Wm. Wrigley Jr. Co., 663 F.Supp.2d 1336, 1342–43 (S.D. Fla. 2009) (recognizing that privity may not be required for all express warranty claims). But even if we assume privity is required, Mr. Godelia has sufficiently alleged it.