Opinion
CASE NO. 21-80727-CV-MIDDLEBROOKS
2021-11-05
Rebekah KURIMSKI, on behalf of herself and all others similarly situated, Plaintiff, v. SHELL OIL COMPANY and Sun Gas 2100, LLC, Defendants.
Robert Cordel Gindel, Jr., Boynton Beach, FL, Erin J. Ruben, Pro Hac Vice, Whitfield Bryson LLP, Karl Amelchenko, Pro Hac Vice, Scott Crissman Harris, Milberg Coleman Bryson Phillips Grossman PLLC, Raleigh, NC, for Plaintiff. J. Trumon Phillips, DLA Piper LLP, Tampa, FL, Austin K. Brown, Pro Hac Vice, DLA Piper LLP, Washington, DC, Isabelle Ord, Pro Hac Vice, DLA Piper LLP, San Francisco, CA, Maia Sevilla-Sharon, DLA Piper LLP, Miami, FL, Timothy Pfenninger, Pro Hac Vice, DLA Piper LLP, Philadelphia, PA, for Defendant Shell Oil Company. Scott A. Bassman, Matthew Alexander Green, Cole, Scott, Kissane, P.A., Fort Lauderdale, FL, for Defendant Sun Gas 2100 LLC.
Robert Cordel Gindel, Jr., Boynton Beach, FL, Erin J. Ruben, Pro Hac Vice, Whitfield Bryson LLP, Karl Amelchenko, Pro Hac Vice, Scott Crissman Harris, Milberg Coleman Bryson Phillips Grossman PLLC, Raleigh, NC, for Plaintiff.
J. Trumon Phillips, DLA Piper LLP, Tampa, FL, Austin K. Brown, Pro Hac Vice, DLA Piper LLP, Washington, DC, Isabelle Ord, Pro Hac Vice, DLA Piper LLP, San Francisco, CA, Maia Sevilla-Sharon, DLA Piper LLP, Miami, FL, Timothy Pfenninger, Pro Hac Vice, DLA Piper LLP, Philadelphia, PA, for Defendant Shell Oil Company.
Scott A. Bassman, Matthew Alexander Green, Cole, Scott, Kissane, P.A., Fort Lauderdale, FL, for Defendant Sun Gas 2100 LLC.
ORDER GRANTING MOTION TO DISMISS
DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant Shell Oil Company's Motion to Dismiss, filed on July 12, 2021 (DE 30), in which Defendant Sun Gas 2100 LLC joins. (DE 45). The Motion is fully briefed (DE 38; DE 43). For reasons set forth below, the Motion is granted.
I. BACKGROUND
Plaintiff initiated this putative class action on April 16, 2021 against Shell Oil Company ("Shell") (DE 1) and amended her complaint on June 28, 2021, thereby adding Sun Gas 2100 LLC ("Sun Gas") as a defendant. (DE 26). The central issue in this case is a two-tiered method of gas pricing—called "split pricing"—through which Defendants advertise and sell gas at one price for purchases made with a credit card and a slightly lower price for purchases made with cash. (Id. ¶ 33). Plaintiff alleges that debit card users including herself are deceived by Defendants’ advertising of split pricing into thinking that debit users will pay the lower cash price per gallon, when debit card users are charged the same price as the credit price per gallon. (Id. ¶ 66). The deception allegedly occurs because "when presented with a ‘cash’ price and a ‘credit’ price, reasonable consumers will invariably expect to pay Shell's advertised ‘cash’ price rather than the ‘credit’ price because a debit card is not a credit card" and "consumers consider a debit card to be a form of cash, not a credit card." (Id. ¶¶ 69, 99).
Shell operates a network of gas stations at least some of which are independently owned and operated. (Id. ¶ 3). Sun Gas is a Shell "Dealer," an independently owned and operated Shell-branded station. (Id. ¶¶ 21, 31). Plaintiff asserts that split-pricing is a "corporate level decision" set by Shell and carried out by its Dealers. (Id. ¶ 97). Dealers allegedly enter into agreements with Shell that afford Shell some degree of control over certain aspects of the business. (See id. ¶¶ 27–30). For example, Plaintiff alleges that Dealers must use Shell's payment processing system and Shell processes credit and debit card sales and charges Dealers "a processing fee." (Id. ¶¶ 28–29). Plaintiff also alleges that Shell maintains direct control over the design of split pricing advertising and is responsible for the "disclosures consumers receive." (Id. ¶¶ 97, 103). Additionally, Shell allegedly provides and/or approves Shell-branded equipment and materials used by Dealers, and Shell provides "franchising-type support" in areas such as marketing. (Id. ¶¶ 25–26). Plaintiff alleges that Shell benefits financially from split pricing in several ways. Shell allegedly either charges royalties or pays commissions, through which "Shell always benefits from increased consumer sales o[f] gasoline." (Id. ¶ 30). Shell also allegedly receives a "payment processing fee" for every debit transaction processed and processes debit cards like credit cards. (Id. ¶¶ 39, 92). Further, holders of Shell's credit card receive a $0.10 discount on gas, making the price more gallon "equivalent" to the cash price, which Plaintiff alleges adds to the appeal of the Shell credit cards. (Id. ¶¶ 37–38).
Reasonable consumers are allegedly deceived by split pricing advertising because debit users "consider a debit card to be a form of cash, not a credit card." (Id. ¶ 99). Debit cards, akin to an "electronic check," are "a convenient alternative to cash." (Id. ¶¶ 41, 43). Plaintiff purports that a 2019 survey of 1,600 individuals by "GasBuddy.com" found that 51% of the 1,600 respondents used debit cards as their preferred method of purchasing gas, "[a] significant number" of whom preferred debit "because they receive a discount off the credit card price on gasoline." (Id. ¶¶ 48–49). Plaintiff alleges that debit card transactions comprise more than half of all transactions at Shell-branded Florida gas stations. (Id. ¶ 95).
Shell's split pricing is advertised in several ways. Some if not all Shell stations utilizing split pricing advertise the split prices at the pump. (See id. ¶ 65 ("In addition to displaying Shell's split pricing on the fuel pumps, many Shell stations also advertise ... on exterior signage"); see id. ¶ 92 ("Shell ... [r]equire[s] Dealers, including Sun Gas, to use the fuel pumps which use deceptive signage.")). Many stations additionally advertise the split prices on large exterior signs at the entrance of the station. (Id. ¶ 65). Further, the "point of sale" ("POS") system at the pumps used by all Shell Dealers "indicate[ ] the type of fuel available and their respective prices." (Id. ¶ 63). Plaintiff describes the consumers deceived by the alleged deceptive marketing of split pricing as "cost-conscious" ones. (Id. ¶ 34). Due to the "ultra-competitive" nature of the gas market, prices per gallon at competing stations may vary by a mere cents, and "a price difference of just a few cents can drive motorists from one dealer to another." (Id. ¶ 96).
Upon deciding to purchase gas from a Shell-branded station, consumers have several payment options: credit (which includes two Shell-branded credit cards), debit cards, "pre-paid debit cards (i.e., Visa prepaid cards)," gift cards, and cash. (Id. ¶¶ 35, 64). Consumers paying with credit, debit, and gift cards can purchase gas from the POS system at the pump; consumers paying with cash must pre-pay with a cashier inside the station, "as the POS cannot process paper currency." (Id. ¶ 65). When debit users purchase gas at the pump using the POS, they "look first to the card reader, which instructs them to insert their card and then guides the consumer through the steps to authorize payment." (Id. ¶ 104). Then, the POS system, which "indicates the type of fuel available and their respective prices," (id. ¶ 62), prompts the entry of a PIN number to authorize the transaction. (Id. ¶ 105). "After the POS device instructs the cardholder to begin fueling, a small digital screen displays a price labeled only as ‘price per gallon.’ " (Id. ¶ 107).
According to Plaintiff, "[a] reasonable consumer would not expect the price at the pump to be different from the price advertised on Shell's other signage, so there would be no reason to pay close attention to the pump's pricing." (Id. ¶ 108). And because the price difference may amount to just ten cents per gallon, "reasonable consumers are unlikely to realize that the price displayed on the fuel pump and/or on their sales receipt is anything other than the ‘cash’ price they expected to pay" and "would be unlikely to notice the discrepancy when dispensing their gas." (Id. ¶¶ 67, 109). Plaintiff further alleges that the only method by which a consumer could detect "any difference in pricing" is to "leave the fuel dispenser island and investigate the pricing on the street signs or go into the store." (Id. ¶ 110). "The first and only time that Shell discloses its higher charge is on the sales receipt after the sale is completed," if a receipt is requested by the consumer. (Id. ¶ 112). As a result of this allegedly deceptive practice, Defendants "collect unauthorized debit card surcharges" and "inflated debit card processing fees." (Id. ¶¶ 61, 76).
Plaintiff regularly purchases gasoline from Shell-branded dealers that advertise split pricing in Florida. (Id. ¶ 118). Plaintiff considers debit cards to be a form of cash "[b]ased on the fundamental differences between a debit card and a credit card." (Id. ¶ 119). On or about February 5, 2021, Plaintiff used a debit card to purchase gas at a station owned and operated by Sun Gas in Delray Beach, Florida. (Id. ¶ 121). "Plaintiff had no reason to take notice of the ‘price per gallon’ displayed on the fuel dispenser." (Id. ¶ 125). Upon requesting and reviewing her receipt after the sale, Plaintiff "was surprised to learn that she had been charged the credit price rather than the advertised cash price that she expected to pay." (Id. ¶ 126). On several other unspecified occasions, Plaintiff alleges to have purchased gas from Shell-branded stations using her debit card and that she "was consistently charged the higher credit price when making those purchases." (Id. ¶ 127). As a holder of both a debit and a credit card, Plaintiff states that she could have either purchased gas with her credit card, thereby accruing points and deferring payment, or paid with cash. (Id. ¶ 128). Alternatively, Plaintiff could have bought gas at non-Shell gas stations that do not offer split pricing. (Id. ¶ 129).
Plaintiff alleges that both Defendants "created, designed, reviewed and approved the deceptive advertising," and did so deliberately to deceive consumers and "with actual knowledge" that split pricing advertisement is deceptive. (Id. ¶¶ 74–76). While both Defendants allegedly "design the appearance of the signage," only Shell "retains the sole discretion to dictate and change the number, type, and location of the signage[s] installed" at the Dealer-owned stations. (Id. ¶¶ 75, 79). The signs are allegedly owned by Shell. (Id. ¶ 80). Shell allegedly "refuses to disclose, or require disclosure of, its debit card processing policy," as Shell retains "sole discretion and authority over the disclosures that consumers receive." (Id. ¶¶ 86–87). Plaintiff alleges that Shell has a duty to disclose the "fees" charged to debit card users. (Id. ¶ 88).
Plaintiff's operative complaint includes four counts: violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count I); fraudulent misrepresentation (Count II); negligent misrepresentation (Count III); and unjust enrichment (Count IV). (DE 26). Plaintiff also seeks injunctive relief to enjoin Defendants’ allegedly unlawful practices. (Id. ). Defendants move to dismiss the complaint on the grounds of lack of Article III standing and improper shotgun pleading, and additionally move to dismiss each count for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 30).
II. STANDING
Defendants raise three standing arguments: (1) Plaintiff did not allege an injury in fact sufficient to bring a damages claim under FDUTPA (DE 30 at 5–6); (2) Plaintiff did not allege an injury in fact sufficient to bring a claim for injunctive relief for all claims (id. at 8); and (3) Plaintiff's injury is not traceable to Shell, an argument raised solely by Shell (id. at 6–7).
A. Legal Standard
Under Article III of the U.S. Constitution, federal courts may only decide "Cases" and "Controversies." U.S. Const. art. III, § 2. The doctrine of standing "stems directly from Article Ill's case or controversy requirement" and implicates the subject matter jurisdiction of the federal courts. Kennedy v. Floridian Hotel, Inc. , 998 F.3d 1221, 1230 (11th Cir. 2021) (quoting Bochese v. Town of Ponce Inlet , 405 F.3d 964, 974 (11th Cir. 2005) ). To have standing, a plaintiff: "[(1)] must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ [(2)] that is traceable to the challenged action of the defendant and [(3)] likely to be redressed by a favorable judicial decision." Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 125, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan , 504 U.S. at 561, 112 S.Ct. 2130.
"Attacks on subject matter jurisdiction, which are governed by Rule 12(b)(1), come in two forms: facial or factual." Kennedy , 998 F.3d at 1230. In a facial attack, the defendant "challenges whether a plaintiff ‘has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.’ " Id. (quoting Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) ). In a factual attack, the defendant " ‘challenges the existence of subject matter jurisdiction irrespective of the pleadings, and extrinsic evidence may be considered.’ " Id. (quoting Lawrence , 919 F.2d at 1529 ). When considering a facial attack, the court "must consider the allegations of the complaint to be true," whereas when considering a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Lawrence , 919 F.2d at 1529 (quoting Williamson v. Tucker , 645 F.2d 404, 412–413 (5th Cir. 1981) ).
Two of the three standing arguments are facial attacks. With respect the traceability argument, brought only by Shell, Shell attaches an affidavit on which it requests I rely, (DE 30-1), which renders that argument a factual attack. See Morrison v. Amway Corp. , 323 F. 3d 920, 925 n. 5 (11th Cir. 2003) ("Appellees’ motion to dismiss was a factual attack because it relied on extrinsic evidence and did not assert lack of subject matter jurisdiction solely on the basis of the pleadings."). Accordingly, I construe only Shell's traceability argument as a factual attack.
Defendants argue solely based on the pleadings that (1) Plaintiff "fails to allege a cognizable injury" as to her FDUTPA claim and (2) Plaintiff lacks standing to seek injunctive relief because "Plaintiff cannot plausibly allege that she faces a threat of future harm...." (DE 30 at 5, 8).
As per Sun Gas's Notice of Joinder in Defendant Shell Oil Company's Motion to Dismiss Plaintiff's First Amended Complaint, Sun Gas "does not adopt or join in Shell Oil's argument as to whether Plaintiff's purported harm is traceable to Shell Oil." (DE 45 at 2 n. 1).
Shell does not draw this distinction between facial and factual attacks. (DE 30 at 4–50). However, the 2-page affidavit addressees only Shell's ability to control or set prices at independently owned Shell-affiliated stations. This affidavit supports only the argument that Plaintiff's injury is not traceable to Shell, and provides no facts that support the other two standing arguments, brought by both Defendants.
B. Discussion
1. Injury in Fact – FDUTPA Damages
Defendants first argue that Plaintiff fails to plead a cognizable injury in fact under FDUTPA. (DE 30 at 5). An injury in fact is "an invasion of a legally protected interest." Lujan , 504 U.S. at 560, 112 S.Ct. 2130. "An injury-in-fact must be both (1) particularized (‘affect the plaintiff in a personal and individual way’) and (2) concrete (‘real, and not abstract’)." MSPA Claims 1, LLC v. Tenet Fla., Inc. , 918 F.3d 1312, 1318 (11th Cir. 2019) (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 339–40, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ). An economic injury "is the epitome of ‘concrete.’ " Id. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice" to establish an injury in fact. Lujan , 504 U.S. at 561, 112 S.Ct. 2130.
Plaintiff alleges to have suffered an actual monetary injury due to Defendants’ allegedly deceptive scheme. Had Plaintiff known that debit cards would be charged at the credit price per gallon, she alleges that she would have paid with cash thereby saving several cents per gallon. (DE 26 ¶¶ 67, 128, 131). In other words, she alleges that she paid a premium. Payment of an allegedly unauthorized premium constitutes an economic injury. See Fox v. Ritz-Carlton Hotel Co., L.L.C. , 977 F.3d 1039, 1043–44, 1047 (11th Cir. 2020) (noting that with respect to a FDUTPA plaintiff who sued the Ritz-Carlton for "charg[ing] him an illegal automatic gratuity" without adequate disclosure, and "charg[ing] sales tax on the automatic gratuity ... no one disputes that [plaintiff] suffered an individual injury-in-fact fairly traceable to Ritz-Carlton's allegedly deceptive practices," because an economic injury is a concrete injury in fact).
Defendants argue that because Plaintiff received the benefit of the bargain—a tank of gas at the debit price—she did not suffer an economic injury. That argument is misguided. The recovery of damages under FDUPTA depends on whether the consumer paid a premium, which Plaintiff adequately pleads. See Carriuolo v. Gen. Motors Co. , 823 F.3d 977, 986 (11th Cir. 2016) ("FDUTPA recovery depends on whether plaintiffs pay a premium...."); see also Fitzpatrick v. Gen. Mills, Inc. , 635 F. 3d 1279, 1283 (11th Cir. 2011) ("Thus, ... each putative class member would only need to show that he or she paid a premium for [the product] to be entitled to damages under the FDUTPA."). While "the benefit of the bargain," to which Defendants allude, is the typical measure of calculating FDUTPA damages, it is not the exclusive measure. See Carriuolo , 823 F. 3d at 986–87 ; Rollins, Inc. v. Heller , 454 So. 2d 580, 585 (Fla. 3rd DCA 1984). And Plaintiff argues that she did not in fact receive the benefit of the bargain. (DE 38 at 5). In any event, the Eleventh Circuit has cautioned against "conflat[ing] Article Ill's requirement of injury in fact with a plaintiff's potential cause of action, for the concepts are not coextensive." Debernardis v. IQ Formulations, LLC , 942 F.3d 1076, 1084 (11th Cir. 2019). For standing purposes, Plaintiff has adequately plead a concrete economic injury in fact.
2. Injury in Fact – Injunctive Relief
Plaintiff broadly seeks "declaratory, injunctive, and other equitable relief ... including enjoining Defendants from continuing the unlawful practices described herein." (DE 26 at 30). Defendants argue that Plaintiff lacks standing to seek injunctive relief because she does not allege any threat of future harm. (DE 30 at 8). Plaintiff responds that "there is no requirement that a plaintiff show an ongoing practice or irreparable harm" under FDUTPA. (DE 38 at 9). While Plaintiff is correct that FDUTPA allows plaintiffs to pursue injunctive relief on behalf of the public even if Plaintiff herself would not benefit from the injunction, see Davis v. Powertel, Inc. , 776 So. 2d 971, 974 (Fla 1st DCA 2000), that does not override the Article III standing requirements.
A named plaintiff in a putative class action must still meet the Article III standing requirements. Vega v. T-Mobile USA, Inc. , 564 F. 3d 1256, 1265 (11th Cir. 2009). An Article III injury in fact "requires an additional showing when injunctive relief is sought," namely, the plaintiff "must show a sufficient likelihood that he will be affected by the alleged unlawful conduct in the future." Houston v. Marod Supermarkets, Inc. , 733 F. 3d 1323 (11th Cir. 2013) (quoting Wooden v. Bd. of Regents of Univ. Sys. of Ga. , 247 F. 3d 1262, 1284 (11th Cir. 2001) ). The future injury must be "real and immediate—as opposed to merely conjectural or hypothetical." Id. (internal citation omitted). A threat of future injury "must be certainly impending to constitute an injury in fact." Clapper v. Amnesty Int'l, USA , 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (internal citations omitted) (emphasis in original).
Here, Plaintiff has not alleged any future harm. In fact, Plaintiff alleges that she would not have purchased Shell-branded gas had she known the true price per gallon, and that split pricing eliminates the incentive to purchase Shell-branded gas with a debit card, thereby implying that she ceased patronizing Shell-branded stations that use split pricing after learning of the alleged scheme. (See DE 26 ¶¶ 128–32). Allegations of past harm do not suffice to show threat of future harm. See O'Shea v. Littleton , 414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects."); see also City of Los Angeles v. Lyons , 461 U.S. 95, 104, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ("[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy."). As Plaintiff fails to allege any threat of imminent future injury, she lacks standing to pursue injunctive relief.
3. Traceability to Shell
Shell argues that Plaintiff's alleged harm is not fairly traceable to Shell because Sun Gas is independently owned and operated and Shell has no direct control over its pricing. (DE 30 at 6–8). The traceability requirement "is less stringent than proximate cause: ‘[e]ven a showing that a plaintiff's injury is indirectly caused by a defendant's actions satisfies the fairly traceable requirement.’ " Cordoba v. DIRECTV, LLC , 942 F. 3d 1259, 1271 (11th Cir. 2019) (quoting Resnick v. AvMed, Inc. , 693 F.3d 1317, 1324 (11th Cir. 2012) ) (alteration in original).
Plaintiff alleges that Shell caused her alleged injury both directly and indirectly. Shell's affidavit of Christopher Suess, the North America Cards Marketing Manager sufficiently forecloses only the claim that Shell directly controls the prices offered at independently owned stations. (See DE 30-1 ¶¶ 1–2). Mr. Suess states that "Shell does not own, operate, or franchise" any gas stations in Florida, including the Sun Gas station at issue. (Id. ¶ 4). "Shell contracts with gasoline wholesalers, to supply fuel and permit those wholesalers to use Shell branding." (Id. ¶ 5). The wholesalers then "contract with networks of independent dealers" or "intermediary wholesalers, who contract with independent dealers." (Id. ). The independent dealers operate Shell-branded gas stations and sell Shell oil. (Id. ). Further, "Shell does not direct or control" the prices at which gallons of gas are sold at "any gasoline station" in addition to the station at issue. (Id. ¶ 6). Nor does Shell "direct or control the availability, characterization, or terms of any temporary or long-term discount promotion, or per-gallon price differential" between transactions utilizing different payment methods "offered or posted by any gasoline station." (Id. ¶ 7). Shell lacks the "contractual rights to make or direct such decisions." (Id. ).
Mr. Suess's affidavit establishes that Shell does not exert direct control over the prices offered at independently owned stations like Sun Gas. Shell's evidence does not, however, address the indirect ways Shell is alleged to have caused Plaintiff's injury. Plaintiff alleges that split pricing is Shell's corporate-level policy, and that Shell incentivizes dealers to charge a higher price for debit transactions in several ways. For example, Plaintiff alleges that Shell either pays independent dealers a commission based on amount of gas sold or collects royalties on gross gas sales. (Id. ¶ 30). She also alleges that Shell processes credit and debit transactions from dealers’ stations and collects a processing fee for every card processed. (Id. ¶¶ 29, 39). Further, "materials bearing Shell's logo," including signs and fuel pumps on which split pricing is displayed, "are provided by and/or approved by Shell prior to their use by Dealers," and Shell allegedly provides revenue-boosting support in areas such as marketing. (Id. ¶¶ 25–26). Shell's actions need not be "the very last step in the chain of causation." See Bennett v. Spear , 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (noting that while "it does not suffice if the injury complaint of is ‘th[e] result [of] the independent action of some third party not before the court, ... that does not exclude injury produced by determinative or coercive effect upon the action of someone else" (internal citations omitted) (alteration and emphasis in original)). While I credit Mr. Suess's affidavit as to the lack of direct control Shell can or does exert over independently owned stations with respect to pricing decisions, I do not read the affidavit to assert that Shell maintains no indirect control over advertising and payment processing at stations selling Shell's gas and bearing its logo. I therefore find that Plaintiff's alleged injury is traceable to Shell.
III. FAILURE TO STATE A CLAIM
A. Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the allegations in a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing legal sufficiency, the Court is bound to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). That is, the complaint "must ... contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "Dismissal is therefore permitted when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Glover v. Liggett Grp., Inc. , 459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist. , 992 F.2d 1171, 1174 (11th Cir. 1993) ).
When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and assume the truth of the plaintiff's factual allegations. See Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; Christopher v. Harbury , 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) ; Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997). However, pleadings that "are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; see also Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009) (stating that an unwarranted deduction of fact is not considered true for purposes of determining whether a claim is legally sufficient). "[A] formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). "Factual allegations must be enough to raise [the plaintiff's] right to relief above the speculative level." Id.
"A court's review on a motion to dismiss is [generally] ‘limited to the four corners of the complaint.’ " Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (11th Cir. 2009) (citation omitted). However, it may also consider "any documents referred to in the complaint which are central to the claims." Id. (citation omitted). "[W]hen exhibits attached to a complaint ‘contradict the general and conclusory allegations of the pleading, the exhibits govern.’ " Gill as Next Friend of K.C.R. v. Judd , 941 F.3d 504, 514 (11th Cir. 2019) (internal citation omitted).
B. Discussion
1. FDUTPA – Count I
FDUTPA prohibits "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce...." Fla. Stat. § 501.204(1). To state a damages claim under FDUTPA, the plaintiff must allege: "(1) a deceptive act or unfair practice, (2) causation; and (3) actual damages." Carriuolo v. Gen. Motors Co. , 823 F.3d 977, 983 (11th Cir. 2016). Defendants argue that Plaintiff fails to adequately plead a deceptive act and resulting damages. Because I agree that Plaintiff fails to plead a deceptive act, I need not address the element of damages.
As to the lack of deception, Defendants’ argument is two-fold: (1) Plaintiff fails to plausibly allege that she should have been charged the cash price, and (2) Plaintiff fails to allege a false or misleading representation because the price per gallon charged to debit card users is displayed at the pump prior to the purchase.
Defendants also take issue with Plaintiff's invocation of the "Visa Rules," which appears to include an agreement between Visa and a number of merchants. Plaintiff seems to utilize these rules to argue that split pricing is violative of those rules and thus deceptive. (See DE 26 ¶¶ 51–59). As I find that Defendants’ use of split pricing is not deceptive for other reasons, I need not address this argument.
Under FDUTPA, "deception occurs if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment." Zlotnick v. Premier Sales Grp., Inc. , 480 F.3d 1281, 1284 (11th Cir. 2007) (quoting PNR, Inc. v. Beacon Prop. Mgmt., Inc. , 842 So.2d 773, 777 (Fla. 2003) ) (quotation marks and citation omitted). "This standard requires a showing of ‘probable, not possible, deception’ that is ‘likely to cause injury to a reasonable relying consumer.’ " Id. (quoting Millennium Commc'ns & Fulfillment, Inc. v. Office of Atty. Gen., Dep't of Legal Affairs, State of Fla. , 761 So.2d 1256, 1263 (Fla. 3rd DCA 2000) ). Actual reliance is not required. Carriuolo , 823 F. 3d at 983. Rather, an objective test is used to determine whether "the alleged practice was likely to deceive a consumer acting reasonably in the same circumstances." Id. at 983–84 (internal citation omitted).
At the outset, I note that split pricing is permissible under state law. Fla. Stat. § 526.121(2) ("This section shall not be construed to prohibit a price differential between a cash sale and a credit sale of the same grade of gasoline...."). While Defendants did not address in their briefing (and thus I will not analyze) whether their conduct is thus shielded by the "safe harbor" provision of FDUTPA, the fact that the legislature considered and allowed split pricing of cash and credit gas sales may suggest that split pricing is not inherently deceptive.
FDUTPA includes a safe harbor provision, pursuant to which the statute does not apply to "[a]n act or practice required or specifically permitted by federal or state law." Fla. Stat. § 501.212(1) ; see also Kuenzig v. Hormel Foods Corp. , 505 F. Appx 937, 939 (11th Cir. 2013).
Plaintiff essentially alleges a bait and switch scheme: First, when "consumers view Shell's split pricing signage, they must make a determination as to which price will apply to a debit card" and "[a] reasonable consumer would invariably conclude that the cash price applies because consumers consider a debit card to be a form of cash, not a credit card." (Id. ¶¶ 40, 69, 99). In other words, the omission of a debit price in split pricing advertisements induces reasonable consumers to purchase Shell-branded gas because they believe they will pay the lower cash price. Then, once reasonable consumers reach the pump, they would have "no reason to pay close attention to the pump's pricing" when it "displays a price labeled as ‘price per gallon’ " prior to fueling, and due to the "the small price differential" between the cash and credit prices, "reasonable consumers would be unlikely to notice the discrepancy when dispensing their gas." (Id. ¶¶ 107–09).
Plaintiff's theory of deception fails because there is neither a bait nor a switch.
i. Split Pricing is Not Misleading to the Reasonable Consumer
Plaintiff alleges that split pricing "is deceptive because when presented with a ‘cash’ price and a ‘credit’ price, reasonable consumers invariably expect to pay Shell's advertised ‘cash’ price rather than the ‘credit’ price because a debit card is not a credit card ." (DE 26 ¶ 69 (emphasis in original)). Defendants argue that Plaintiff fails to sufficiently plead that reasonable consumers equate cash with debit and thus expect to pay the cash price. (DE 30 at 9).
"Deceptive advertising claims [under state consumer protection statutes] should take into account all the information available to consumers and the context in which that information is provided and used." Bell v. Publix Super Markets Inc. , 982 F.3d 468, 477 (7th Cir. 2020) ; see also Moore v. Trader Joe's Co. , 4 F. 4th 874, 882 (9th Cir. 2021) ("[T]he information available to a consumer is not limited to the physical label [or advertising] and may involve contextual inferences regarding the product itself and its packaging."). "And where Plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations or labels or other advertising, dismissal on the pleadings may well be justified." Bell , 982 F. 3d at 477.
This action was brought under the consumer protection statutes of ten states, including Florida. Id. at 474 n. 1. As explained by the Seventh Circuit: "[t]he core prohibitions of these laws are interpretated for the most part interchangeably, and the parties have not identified any differences relevant to these appeals. We concentrate on the general prohibition against advertising that is likely to deceive a substantial number of reasonable consumers." Id. at 475.
This case was brought under California's consumer protection laws, which apply the same "reasonable consumer" test for deception as applied in interpreting FDUTPA. Id. at 881.
The Ninth Circuit's ruling in Moore is instructive as to the contextual factors appropriately considered. In Moore , the Ninth Circuit found that Trader Joe's labeling of honey as "100% New Zealand Manuka Honey" and listing "Manuka Honey" as the sole ingredient was not misleading to a reasonable consumer, despite that the honey only consists of 57% to 62% honey derived from a manuka flower nectar. 4 F. 4th at 876–77, 879–80. The Ninth Circuit affirmed the district court's dismiss of the complaint, finding that reasonable consumers of this particular product would know that it is impossible to produce "pure" batches of honey derived only from the Manuka flower and the inexpensive price would further signal to a reasonable consumer of this honey that the jar does not include 100% of honey derived from manuka. Id. at 881, 883–84. "Reasonable consumers would necessarily require more information before they could reasonably conclude that Trader Joe's label promised honey that was 100% derived from a single, floral source," and "a plaintiff's unreasonable assumptions about a product's label will not suffice." Id. at 882.
Here, several factors lead me to conclude that reasonable consumers would not, upon seeing a cash price and a credit price posted outside a gas station, probably, as opposed to merely possibly, understand that signage to advertise that debit card transactions will be processed at the posted cash price.
First, Plaintiff claims that upon seeing Defendants’ split pricing, consumers "must make a determination as to which price will apply to them," which is not necessarily the case. (DE 26 ¶ 99 (emphasis added)). For one, reasonable consumers of gas would be well aware that the exterior signage does not necessarily display the full menu of fuels available for purchase with their respective prices. As documented by Plaintiff's pictures embedded in her Complaint, gas stations often sell several grades of fuel at different prices, such as "regular," "plus," or "V-power Nitro." (Id. at 10). As Plaintiff's pictures further show, while the above-stated grades of fuel are posted on the fuel dispenser, (each presenting both a cash and credit price, thereby totaling six prices posted on the fuel dispenser) the exterior sign might display only a single cash price and a single credit price without specifying the type of fuel to which those prices pertain, or without even stating what grades of fuel are available for purchase. (Id. at 10–11). Additionally, Plaintiff states that Shell gas can be purchased by at least four separate methods of payment: cash, credit (including Shell-branded credit cards, which receive a discount), debit (including pre-paid debit cards), and gift cards. (Id. ¶¶ 35–37, 64). Reasonable consumers of gas thus understand that exterior signage does not necessarily provide the complete universe of pricing-related information that they may need prior to their purchase, and they know that such information is generally found at the pump.
Plaintiff further alleges that upon seeing split pricing signs, "reasonable consumers will invariably expect to pay Shell's advertised ‘cash’ price rather than the ‘credit’ price because a debit card is not a credit card. " (Id. ¶ 69 (emphasis in original)). Accordingly, "[c]onsumers consider debit cards to be a form of cash." (See id. ¶ 40). But that debit cards are not credit cards does not render them cash. Plaintiff plausibly explains how debit cards differ from credit cards in key ways, such as the lack of a positive credit history requirement and immediate deduction from one's bank account. (Id. ¶¶ 42, 45). Yet Plaintiff also acknowledges the ways in which debit cards are similar to credit cards and dissimilar to cash. Debit cards, like credit cards, are often subject to a processing fee, including by Defendants. (Id. ¶¶ 39, 72). Debit cards, like credit cards, may be subject to an authorization hold by the cardholder's bank, as an image of a Shell fuel pump embedded in Plaintiff's complaint depicts. (Id. at p. 10). Plaintiff even describes debit as "a convenient alternative to cash." (¶ 43) (emphasis added). Drawing all reasonable inferences in Plaintiff's favor, the most I can reasonably infer is that debit cards have features that make them both similar and dissimilar to cash as well as credit. But even if consumers view debit as more like cash than like credit, of which I am not convinced, it still logically follows that debit cards are their own form of payment. Plaintiff's insistence that debit cards must be either cash or credit creates a false dichotomy. Therefore, Plaintiff's assertion that consumers expect the debit price to equate to the cash price "because a debit card is not a credit card" is not plausible. (See id. ¶¶ 69, 73, 99).
That claim is rendered further implausible when analyzed in the context of reasonable consumers purchasing gas. Such consumers would not "invariably" expect to pay the cash price when using an electronic form of payment because reasonable purchasers of gas are aware that gas stations process cash transactions differently than electronic transactions. As Plaintiff notes, while self-service fuel pumps accept all forms of electronic payment, including debit and credit cards, "the POS cannot process paper currency." (Id. ¶ 64). Gas can only be purchased via cash by "pre-pay[ing] at the cashier" inside the station, which may only be available during business hours. (See id. ). Reasonable consumers expect that cash transactions and debit transactions will be processed differently when purchasing gas in at least some respects, which would dispel any notion that purchasing gas with cash and purchasing gas with a debit card are functionally equivalent.
Finally, it is also critical that reasonable consumers of gas are more price-aware than consumers of other products, according to Plaintiff's own allegations. Plaintiff describes the consumers deceived by this alleged scheme as "cost conscious" ones. (Id. ¶ 34). She describes the gas market as "ultra-competitive," in which as many as "four competing stations" may compete for business in a single intersection. (Id. ¶ 96). Given those market features, "a price difference of just a few cents can drive motorists from one dealer to another." (Id. ). Plaintiff indicates that price is an important, if not the most important, factor to reasonable purchasers of gas. (See id. ). Unlike consumers who likely "exhibit a low degree of care when purchasing low-priced, everyday items," like common grocery store products, Bell , 982 F.3d at 479, Plaintiff alleges that reasonable consumers of gas exhibit a high degree of care and pay particular attention to price differences of mere pennies. (See DE 26 ¶ 96); see also Moore , F. 4th at 884 (noting that unlike in Bell , consumers of Manuka honey, a "niche, specialty [food] product are undoubtedly more likely to exhibit a higher standard of care than ‘a parent walking down the dairy aisle in a grocery store, possibly with a child or two in tow,’ who ‘is not likely to study with great diligence the contents of a complicated product package.’ "). Reasonable consumers of gas are thus not making purchasing decisions based on what exterior signs don't say. Rather, like the consumers of a specialty product in Moore , "reasonable consumers would necessarily require more information before they could reasonably conclude," based purely on the posted cash and credit prices, that debit users will be charged the cash price featured on the exterior sign. See 4 F. 4th at 882.
The context in which gas is bought, sold and advertised would quickly dispel to reasonable consumers any notion that debit card transactions for gas will be processed at the cash price based solely on Defendants’ (truthful) advertisement of a cash and credit price and omission of a debit price. Plaintiff's claim of deception is premised on her own "unreasonable assumptions," Moore , 4 F. 4th at 882–883, which is not sufficient to show "probable , not possible, deception" of "consumers acting reasonably in the circumstances. " Zlotnick , 480 F. 3d at 1284 (internal citations omitted). I therefore find that Defendants’ advertisement of split pricing is not deceptive.
ii. Disclosure of the Price Per Gallon at the Pump
Defendants additionally argue that the disclosure at the pump, prior to payment, of a price identified as the price per gallon at which debit card users will be charged further negates any claim of deception. (DE 30 at 11–12, 14–16). I agree that in these circumstances, no reasonable consumer would be misled as to price when the price they will be charged is clearly presented during the transaction but before any charges are incurred.
The presence of true information or a disclaimer can rebut a claim of deception. See Freeman v. Time, Inc. , 68 F. 3d 285 (9th Cir. 1995) (affirming the district court's grant of a motion to dismiss involving a promotional letter purporting to identify the plaintiff as the winner of a sweepstakes, when the letter clearly and inconspicuously stated the conditions plaintiff must meet in order to qualify for the prize); see also Zlotnick v. Premier Sales Grp., Inc. , 480 F. 3d 1281, 1285–86 (11th Cir. 2007) (holding that, despite that an agreement stated that "[s]eller assures that the foregoing purchase price will be the purchase price in the contract for the sale and purchase of the [property,]" the "express terms indicat[ed] that the agreement conferred no interest" in the property and the agreement included a broad cancellation provision, which the seller invoked, so reasonable purchasers would understand that the purchase price was not binding upon cancellation of the agreement, thereby rejecting the plaintiff's claim that the surrounding circumstances would have nonetheless mislead a reasonable purchaser into believing that the terms were not subject to change). Additionally, the presence of accurate information can contribute to the implausibility that reasonable consumers would be deceived by some other information or assumption. See Ebner v. Fresh, Inc. , 838 F. 3d 958, 966 (9th Cir. 2016) (finding it implausible that reasonable consumers are deceived by the label of a lip balm product which accurately stated the net weight, but included a plastic "screw mechanism" to push the product through the tube that prevented the last 25% of the product from reaching the tube opening, because the accurate weight was disclosed, the label complied with applicable law, and "apart from the accurate weight label, there are no other words, pictures, or diagrams adorning the packaging" or "other representations" from which any reasonable inference could be drawn specifically about the weight of the product). Plaintiff alleges that the POS system, immediately after prompting the debit cardholder's PIN number, displays a price identified as the price per gallon and instructs the consumer to begin fueling. (DE 26 ¶ 107). The split prices appear on the pump directly above the fuel pump and immediately below the screen. (Id. ¶ 63, at 10–11). But reasonable consumers would allegedly expect the price at the pump to align with their expectation that they will pay the cash price, so "there would be no reason to pay close attention to the pump's pricing" and they "would be unlikely to notice the discrepancy." (Id. ¶¶ 108–09). Plaintiff herself "had no reason to take notice of the ‘price per gallon’ displayed on the fuel dispenser." (Id. ¶ 125). It is not plausible that, despite the price per gallon being displayed during the transaction, while the consumer is engaging with the POS system, reasonable consumers would ignore the price displayed on the screen and choose instead to rely on their assumption as to what price they expect to pay.
This case was brought under California's consumer protection statutes and analyzed using the "reasonable consumer" standard. Id. at 289.
This case was brought under California's consumer protection statutes and analyzed using the "reasonable consumer" standard. Id. at 965.
First, the price per gallon displayed at the pump is not inconspicuous. According to Plaintiff, the price per gallon is displayed on the POS system immediately after it prompts the cardholder to enter his or her PIN. Meaning, the consumer is already looking at the screen when the price per gallon is displayed. Then, as Plaintiff alleges, the POS system instructs the consumer to begin fueling. While Plaintiff alleges that the only way consumers could compare the pump price with their expected price would be to leave the pump and check the exterior signage, that is apparently not the case. Plaintiff also alleges that the split prices are advertised on the fuel pumps (id. ¶¶ 63, 65, 92), just inches below the POS screen and at the location where the POS screen specifically directs consumers to then turn to begin fueling. Compare Freeman , 68 F.3d at 289–90 (allegedly false statement in a promotional mailing that the plaintiff had won a contest was rebutted by clear qualifying language that was not "hidden or unreasonably small" and appeared "immediately next to the representations it qualifies [such that] no reasonable consumer could ignore it"), with Williams v. Gerber Prods. Co. , 552 F. 3d 934, 939 (9th Cir. 2008) (false statements and misleading images on the front of a food package were sufficiently deceptive that the presence of "the truth from the ingredient list in small print on the side of the box" did not rebut a claim of deception). Therefore, reasonable consumers will not miss the fact that the POS displays the price per gallon that they will be charged, while they are completing the transaction, and with the split pricing displayed in the immediate vicinity.
This case was brought under California's consumer protection statutes and analyzed using the "reasonable consumer" standard. Id. at 938.
Further, Plaintiff's claim that reasonable consumers would not notice a price difference at the pump because the price difference is small is not credible in light of her other allegations. Reasonable consumers, according to Plaintiff, choose Shell-branded gas because upon seeing the split pricing signage, they are enticed by the lower cash price they allegedly expect to pay, and "hop[e] to lessen the already heavy burden of gasoline costs" by paying with debit and obtaining the cash price. (DE 26 ¶¶ 66, 97–98). Yet when they reach the pump moments later, Plaintiff's alleged reasonable consumers are unlikely to notice the exact same price difference presented during the transaction, "[g]iven the small price differential between cash and credit pricing." (See id. ¶¶ 108, 122–25). But then, after receiving a receipt, consumers are again able to discern that they were charged the higher credit price, which may be just a few cents more per gallon. (See id. ¶ 112, 126). This series of allegations defies reason. I first note the unreasonableness of a consumer of any product choosing to overlook accurate pricing information presented during the transaction when the merchant has made no prior representation as to the price to be charged. That is especially true in the context of gas purchases, since, as Plaintiff alleges, gas consumers are cost-conscious and make decisions based specifically on small price differences.
In her Response to this Motion, Plaintiff disputes that she conceded that the POS displayed the accurate price per gallon, as Defendants argue. (DE 38 at 11). Plaintiff argues that because she alleged only that the POS displayed a price labeled as the price per gallon, she did not allege that the price labeled as the price per gallon was the accurate price per gallon. (Id. ).
Notably, while Plaintiff initially alleged that she "either did not notice the ‘price per gallon’ displayed on the fuel dispenser or did not recognize it to be Shell's credit price," (DE 1 ¶ 75), she amended her complaint to add allege more vaguely that she "had no reason to take notice" of the price. (DE 26 ¶ 125).
To the extent that Plaintiff requests that I infer the possibility that the POS displayed a price different than the credit price she was charged (i.e., the cash price), even in the light most favorable to Plaintiff that is simply not what she alleged nor can it be plausibly inferred from her allegations. I note first that Plaintiff's argument requires me to draw an inference based on what she did not allege. Moreover, to draw the requested inference, I would have to also infer the possibility that the POS system, upon insertion of a debit card, displays the lower cash price before and during fueling, but actually charges the higher credit price and prints out a receipt reflecting the credit price. That is simply not what Plaintiff alleges. Plaintiff alleges that "debit cards are processed like credit cards." (Id. ¶¶ 92). Several times Plaintiff alludes to the fact that the price displayed at the pump is the price charged (i.e., the credit price). She asserts that consumers "are unlikely to realize that the price displayed on the fuel pump and/or their sales receipt is anything other than the ‘cash’ price that they expected to pay." (Id. ¶ 67). Later, Plaintiff again claims that "a reasonable consumer would be unlikely to notice the discrepancy when dispensing their gas," again indicating that indeed a price discrepancy exists between the alleged expected price (cash) and the price at the pump (credit). (See id. ¶ 109). Plaintiff then explains what consumers would need to do "[i]n order to detect any difference in pricing," which would be wholly unnecessary if the POS displayed the price they expected to pay. (See id. ¶ 110). And while then Plaintiff claims that "the first and only time Shell discloses its higher charge is on the sales receipt," she reaches that conclusion because, as Plaintiff purports, "[t]he law does not require reasonable consumers to be suspicious or to investigate their suspicions." (Id. ¶¶ 111–12). Plaintiff's entire theory of deception is one premised on omission—that advertising only a cash price and credit price, absent a disclosure as to debit price, misleads consumers into thinking that debit users will pay the cash price, and because of that alleged deception, consumers would have no reason to be on alert for a discrepancy at the pump. Nowhere does Plaintiff allege that Defendants affirmatively stated that debit users would be charged the cash price while secretly charging them the credit price. Plaintiff could have alleged in her complaint an additional theory premised on an affirmative false statement at the pump, which she did not do. She cannot now, in response to a Motion to Dismiss, rewrite a new theory into her complaint based on assertions she did not allege. To the extent that Plaintiff argues that regardless of whether the price was accurate, she did not take notice of it and thus subjectively did not realize the price charged until receiving her receipt, that argument is also misplaced. (See DE 38 at 11). The reasonable person standard is an objective one; whether Plaintiff actually internalized the accuracy of the price presented, the fact that it was disclosed and that a reasonable consumer would take notice is what matters. In Zlotnick , the Eleventh Circuit rejected that a transaction was deceptive when a reasonable purchaser would have understood the clear terms of an agreement and the plaintiff acknowledged that the agreement "may have been facially valid," but argued that it was nonetheless misleading. 480 F. 3d at 1285. Likewise, Plaintiff acknowledges that a price labeled as the price per gallon is displayed. (DE 26 ¶ 125). That she subjectively did not take notice of it, choosing instead to rely on her (unreasonable) assumptions, does not suffice to state a claim under FDUTPA. Because reasonable consumers would not be deceived by split pricing advertising and would have any possible deception dispelled by the disclosure of the price per gallon at the pump, Plaintiff fails to sufficiently plead a deceptive act. Accordingly, Plaintiff fails to state a claim upon which relief can be granted under FDUTPA.
2. Fraudulent Misrepresentation – Count II
Defendants argue that Plaintiff fails to state a claim for fraudulent misrepresentation because she does not allege any false statement and the price per gallon is disclosed prior to purchase. (DE 30 at 17–19). To state a claim for fraudulent misrepresentation under Florida law, the plaintiff must allege: "(1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation." Godelia v. Doe 1 , 881 F. 3d 1309, 1321 (11th Cir. 2018) (quoting Butler v. Yusem , 44 So. 3d 102, 105 (Fla. 2010) ). The doctrines of fraudulent and negligent misrepresentation "ask[ ] only whether a representation was technically accurate in all material respects," which "encompasses a [narrower] range of conduct than the standard governing" deception under FDUTPA. See Hetrick v. Ideal Dev. Corp. , 372 F. Appx 985, 992 (11th Cir. 2010). Additionally, "a recipient may rely on the truth of a representation ... unless he knows the representation to be false or its falsity is obvious to him." Butler , 44 So. 3d at 105 (quoting Besett v. Basnett , 389 So. 2d 995, 998 (Fla. 1980) ).
Plaintiff does not allege a single false statement attributed to either Defendant. The "false statement," Plaintiff argues that she plead—"that Shell represented that cash transactions would be charged at a lower price than credit card transactions" via its split pricing advertising—is not in fact a false statement, but rather an omission of any disclosure of the debit price. (See DE 38 at 17). Liability for fraudulent misrepresentation can be based on material omissions. White v. Grant Mason Holdings, Inc. , 741 F. A'ppx 631, 636 (11th Cir. 2018) (citing Gutter v. Wunker , 631 So. 2d 102, 105 (Fla. 2010)). However, "[a] fraud is committed for the failure to disclose material information only when there is a duty to disclose such; and such duty arises when one party has information that the other party has a right to know because of a fiduciary or other relation of trust or confidence between them," which Plaintiff has not alleged. State v. Mark Marks, P.A. , 698 So. 2d 533, 539 (Fla. 1997) (internal citation omitted) (emphasis added). Further, the falsity of any "representation" Plaintiff unreasonably interpreted is made sufficiently obvious at the pump. That Plaintiff chose to rely on her assumptions rather than acknowledge the price presented to her does not render the disclosure non-obvious or Defendants’ conduct fraudulent.
I note that Plaintiff alleges that Shell had a "duty to disclose" the debit price to consumers. (DE 26 ¶ 88). However, this conclusory assertion is unaccompanied by any allegations that suggest that either Defendant has a legal duty to disclose under the above-stated standard, or that she or any other consumer maintain a fiduciary or other relationship of trust with either Defendant. Legal conclusions presented as factual allegations need not be accepted as true on a motion to dismiss. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
3. Negligent Misrepresentation – Count III
Under Florida law, "[t]o establish negligent misrepresentation, a party is required to prove: (1) a misrepresentation of material fact that the defendant believed to be true but which was in fact false; (2) that defendant should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in justifiable reliance upon the misrepresentation." Arlington Pebble Creek, LLC v. Campus Edge Condo. Ass'n, Inc. , 232 So. 3d 502, 505 (Fla. 1st DCA 2017). Justifiable reliance is necessary. Godelia , 881 F. 3d at 1321 (quoting Gilchrist Timber Co. v. ITT Rayonier, Inc. , 696 So. 2d 334, 337 (Fla. 1997) ); Butler , 44 So. 3d at 105. Meaning, the plaintiff "is responsible for ‘investigating information that a reasonable person in the position of the recipient [of the alleged erroneous information] would be expected to investigate,’ " and, the plaintiff "cannot ‘hide behind the unintentional negligence of the misrepresented when the recipient is likewise negligent in failing to discover the error.’ " Butler , 44 So. 3d at 105 (quoting Gilchrist Timber Co. , 696 So. 2d at 337 ).
Plaintiff fails to state a claim for negligent misrepresentation largely for the same reasons discussed in the prior two sections, namely, that she fails to allege any false statement, misrepresentation, or omission. See Hetrick , 372 F. App'x at 992. This claim must also be dismissed because Plaintiff's reliance on any alleged "misrepresentation" conveyed by split pricing advertisements was not justified. Plaintiff concedes that she did not take notice of the price displayed because of the alleged reasonableness of her assumptions as to what price she would be charged. (DE 26 ¶ 125). Plaintiff also alleges that she chose the Sun Gas station because she wanted the lower cash price. (Id. ¶ 122). It is also undisputed that the exterior sign did not explicitly state the price per gallon charged to debit card users. When making a purchase based on price, where the merchant does not display the price to be charged until the pump, the decision to overlook that price and instead rely on assumptions is not justifiable.
4. Unjust Enrichment – Count IV
Defendants argue that Plaintiff fails to state a claim for unjust enrichment because Plaintiff fails to adequately plead that they retained a benefit, that retention of that benefit is inequitable, and because Plaintiff has an adequate remedy at law. (DE 30 at 19–21). Under Florida law, "[a] claim for unjust enrichment has three elements: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it would be inequitable for the defendants to retain it without paying the value thereof." Virgilio v. Ryland Grp., Inc. , 680 F. 3d 1329, 1337 (11th Cir. 2012) (quoting Fla. Power Corp. v. City of Winter Park , 887 So. 2d 1237, 1241 n. 4 (Fla. 2004) ).
As an initial matter, Plaintiff is not barred from bringing an unjust enrichment claim despite that she may have an adequate remedy at law. While "generally true that equitable remedies are not available under Florida law when adequate legal remedies exist ... that rule does not apply to unjust enrichment claims." State Farm Mut. Auto Ins. Co. v. Physicians Inj. Care Ctr., Inc. , 427 F. Appx 714, 722 (11th Cir. 2011), rev'd on other grounds sub nom. State Farm Mut. Auto. Ins. Co. v. Williams , 824 F. 3d 1311 (11th Cir. 2014) (quoting Williams v. Bear Stearns & Co. , 725 So. 2d 397, 400 (Fla. 5th DCA 1998) ). Only the existence of an express contract will bar an unjust enrichment claim under Florida law. Id. (citing Williams , 725 So. 2d at 400 ).
Nevertheless, Plaintiff fails to plead that the circumstances render it inequitable for Defendants to retain any benefit, to the extent that a benefit was conferred upon Defendants. Plaintiff alleges that "[g]iven the nature of [Defendants’] misrepresentations, which were designed to induce Plaintiff ... into making purchases with [her] debit card[ ], it would be inequitable for Defendants to retain" the amount Plaintiff paid over the posted cash price that she expected to pay. (DE 26 ¶ 183). I have already found that Defendants’ advertising of split pricing is not deceptive or misleading, contains no false statements, and that Plaintiff's reliance on her interpretation of Defendants’ advertising was unjustified in the circumstances. Accordingly, absent any further allegations as to how Defendants’ retention of a benefit is inequitable in the circumstances, Plaintiff fails to state a claim for unjust enrichment.
Because I am dismissing each count for failure to state a claim upon which relief can be granted, I need not address Defendants’ additional argument that the complaint should be dismissed as an improper shotgun pleading. (DE 30 at 8–9).
5. Equitable Relief
Plaintiff requests, in addition to damages, "declaratory, injunctive, and other equitable relief as permitted by law, including enjoining Defendants from continuing the unlawful practices described herein." (DE 26 at 30). As to injunctive relief, I have already determined that Plaintiff fails to adequately plead an injury in fact sufficient to confer Article III standing to bring a claim for injunctive relief. As to declaratory and other equitable relief, Plaintiff does not actually request any declaratory or other equitable relief and thus did not state a claim for any such relief.
IV. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that:
(1) Defendant Shell Oil's Motion to Dismiss, in which Defendant Sun Gas joins (DE 30) is GRANTED .
(2) The First Amended Complaint (DE 26) is DISMISSED WITHOUT PREJUDICE .
(3) The Clerk of Court shall CLOSE THIS CASE and DENY ALL PENDING MOTIONS AS MOOT .