Without an appellate opinion on point and because of the lack of consensus within the district, the applicability of § 768.72 remains an essential issue for the court to determine today. Cf. Martin v. Honeywell, Inc., 1995 WL 868604 (M.D.Fla. July 18, 1995) (Bucklew, J.) (holding § 768.72 a substantive limitation on punitive damages which federal courts must apply); Marcus v. Carrasquillo, 782 F. Supp. 593, 600-01 (M.D.Fla. 1992) (Kovachevich, J.) (same); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F. Supp. 1444, 1446 (M.D.Fla. 1989) (Melton, J.) (same); accord, T.W.M. v. American Medical Sys., Inc., 886 F. Supp. 842 (N.D.Fla. 1995) (Vinson, J.) (same). But see In re Edgewater Sun Spot, Inc., 154 B.R. 338 (Bankr.N.D.Fla. 1993) (reaching opposite conclusion).

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.

Neither Lennar nor the homeowners were in privity of contract with Masionite. "A plaintiff who purchases a product," one court writes, "but does not buy it directly from the defendant, is not in privity with that defendant." T.W.M. v. American Medical Sys., Inc., 886 F. Supp. 842, 844 (N.D.Fla. 1995) (citing U.C.C. § 11-2). It is not claimed that plaintiff bought Masonite siding directly from defendant.

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).

The Eleventh Circuit has not addressed the issue. Compare Alexander v. University/Gainesville Healthcare Center, Inc., 17 F. Supp.2d 1291, 1292 (N.D.Fla. 1998) (holding that § 768.72 does not apply in diversity cases) and Hines v. Florida Department of Corrections, No. 4:97cv102-WS (October 15, 1997) (unpublished Report and Recommendation holding that § 768.72 does not apply in diversity cases) with T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842, 845 (N.D.Fla. 1995) (applying § 768.72 in a diversity case); compare Teel v. United Technologies Pratt Whitney, 953 F. Supp. 1534, 1541 (S.D.Fla. 1997) (applying § 768.72 in diversity case) with Blount v. Sterling Healthcare Group, Inc., 934 F. Supp. 1365, 1375 (S.D.Fla. 1996) (holding that § 768.72 does not apply in diversity cases); compare Wilson v. Edenfield, 968 F. Supp. 681, 683 (M.D.Fla. 1997) (applying § 768.72 in a diversity case), with Key Club Associates, Ltd. Partnership v. Biron, 1992 WL 56797, at *7 (M.D.Fla. March 17, 1992) (holding that § 768.72 does not apply in diversity cases). The better view is that the Federal Rules of Civil Procedure, not state law, set forth the pleading rules applicable in federal court.

Here, the undisputed facts show that the plaintiffs never had a relationship, or any contact whatsoever, with Defendant or any person employed by or representing Defendant. Compare T.W.M. and S.M. v. American Medical Systems, Inc., 886 F. Supp. 842, 844 (N.D.Fla. 1995); Baker, 35 F. Supp.2d 875. Accordingly, summary judgment is proper as to this claim.

"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).

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.

Ryder challenges the Plaintiffs, Michael Liker, Bonnie Liker and International Industries' standing to sue because they are allegedly not in privity of contract with Ryder, as required under Florida law. T.W.M. v. American Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995). Ryder argues that since only Ryder and International Industries (Australia) are named parties to the contract, the Court should dismiss the Plaintiffs' claims. After reviewing the briefs and gleaning additional information from a telephone status conference between the parties which was conducted on March 28, 2003, the Court finds that Ryder's Motion should be granted with respect to Michael Liker and Bonnie Liker. These parties were not in privity to the Agreement.

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.