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.

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.”

"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. Am. Med. Sys., Inc. , 886 F.Supp. 842, 844 (N.D. Fla. 1995) ; see alsoWeiss v. Johansen , 898 So.2d 1009, 1012 (Fla. Dist. Ct. App. 2005) ("[T]o recover for the breach of a warranty either express or implied, the plaintiff must be in privity of contract with the defendant."). Recent cases applying Florida law, however, have found an exception to the principle.

See Savett v. Whirlpool, No. 12 CV 310, 2012 WL 3780451, at *9 (N.D. Ohio Aug. 31, 2012). Compare T. W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (stating that "[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."); Weiss v. Johansen, 898 So.2d 1009, 1011 (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.")

. The defendant, relying on T.W.M. v. American Medical Systems, 886 F. Supp. 842, 844 (N.D. Fla. 1995), argued that the claim must fail because the parties are not in privity of contract. The Court rejected this argument, noting that, while Florida courts had not expressly ruled on whether privity is required for an express warranty claim, "several Florida courts discussing warranty claims under the [MMWA] have dismissed implied warranty claims against a manufacturer for lack of privity while allowing express warranty claims to go forward."

Id. See also, T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995); Barrow v. Bristol-Myers Squibb, 1998 WL 812318 (M.D.Fla. 1998). "A warranty, whether express or implied, is fundamentally a contract.