We agree with Franklin that Appellant's contract-based claims, including breach of warranty, are foreclosed by the lack of privity between NHL and Franklin. See TWM SN v. American 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."); Spolski Gen. Contractor, Inc. v. Jett-Aire Corporate Aviation Management of Cent. Florida, Inc., 637 So.2d 968 (Fla. 5th DCA 1994) (finding summary judgment properly granted on warranty claims where there was no contract or privity between parties).

Some courts hold that because express warranty claims are contractual, "the plaintiff must be in privity of contract with the defendant." Hill v. Hoover Co. , 899 F.Supp.2d 1259, 1266 (N.D. Fla. 2012) (quoting T.W.M. v. Am. Med. Sys., Inc. , 886 F.Supp. 842, 844 (N.D. Fla. 1995) ). Other courts have declined to apply the privity requirement when the seller is unlikely to have knowledge about the manufacturer's product.

Under Florida law, merely setting forth conclusory allegations in the complaint is insufficient to entitle a claimant to recover punitive damages. See T.W.M. v. American Medical Sys., Inc., 886 F.Supp. 842, 845 (N.D.Fla. 1995); Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537, 1542-43 (S.D.Fla. 1989). Instead, a plaintiff must plead specific acts committed by a 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).

" 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.

As to standing, 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. See T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D.Fla. 1995); Intergraph Corp. v. Stearman, 555 So.2d 1282 (Fla. 2d DCA 1990) (privity is required in order to recover damages from the seller of a product for breach of express or implied warranties). Weiss's argument that he falls within the UCC's definition of "buyer" as someone who buys or contracts to buy goods, fails to address the fact that based upon all the record evidence, Weiss assigned or transferred his interests under the purchase agreement to Green Shoe, Ltd. See § 672.103, Fla. Stat. While he may have been in privity with Johansen, he no longer possessed any rights under the contract to advance a claim for breach of the implied warranty of merchantability because he did not acquire the vessel in his individual capacity.

Defendant is correct, however, that Florida law requires plaintiffs plead privity in order to state a claim for common law breach of express warranties. See, e.g., T.W.M. v. American Medical Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995); Intergraph Corp. V. Stearman, 555 So.2d 1282, 1283 (Fla.Ct.App. 1990). In turn, plaintiffs argue this breach of express warranty claim is under the Magnuson Moss Warrant Act ("MMWA"), which does not require privity.

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 recipient of an implant is not in privity with the manufacturer when the implant is purchased by the plaintiff's medical provider. T.W.M. and S.M. v. American Medical Systems,Inc. ., 886 F. Supp. 842, 844 (N.D.Fla. 1995) (recipient of penile implant not in privity with manufacturer because hospital first purchased implant from manufacturer). Accordingly, under Florida Law, Count IX should be rejected.

"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.