Case 1:19-cv-20592-JEM Document 30 Entered on FLSD Docket 06/01/2020 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
`CASE NO.: 1:19-CV-20592-MARTINEZ-OTAZO REYES
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`Plaintiff,
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`VASSILIOS KUKORINIS, on behalf of
`himself and all others similarly situated,
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`v.
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`WALMART, INC., a Delaware corporation,
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`
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`___________________________________/
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`Defendant.
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`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`THIS CAUSE is before the Court upon the Motion to Dismiss filed by Walmart, Inc. The
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`Court has carefully reviewed the Motion (DE 24), the Response (DE 25), and the Reply thereto
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`(DE 26). The Court is otherwise fully advised on the premises. For the reasons that follow, the
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`Motion to Dismiss is DENIED.
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`I.
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`BACKGROUND
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`Plaintiff brings this class action suit against Walmart on behalf of himself and others
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`similarly situated to redress what he alleges are unfair, deceptive, and unconscionable business
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`practices on the part of Walmart. (Id. at ¶1). Plaintiff alleges that from February 7, 2015 to the
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`present (the “class period”), Walmart advertised false unit prices for perishable goods (“Weighted
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`Goods”) that were nearing expiration. (Id. at ¶ 2). The gravamen of the complaint is that Walmart
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`has, throughout the class period, consistently reduced the price of Weighted Goods nearing
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`expiration but continually states incorrect unit prices on the labels of said Weighted Goods. (Id.).
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`As a result, Plaintiff alleges that Walmart overcharged for reduced-priced Weighted Goods and
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`that he and others similarly situated did not receive the promised value for Weighted Goods
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`purchased throughout the class period. (Id.).
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`In Walmart stores, Weighted Goods such as beef, poultry, and pork, contain white price
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`labels that include the total price, the unit price (per pound), and the item’s weight in pounds. (Id.
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`at ¶ 23). When Weighted Goods approach expiration, Walmart reduces the price of said goods
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`and affixes a bright yellow sales label in addition to the original white label. (Id.). The yellow
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`label states the weight of the item in pounds, the unit price, the total price, and the amount saved
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`(the difference between the original price and the sales price). (Id.).
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`The problem with Walmart’s pricing system, as alleged by the Plaintiff, is that the unit
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`prices stated on the yellow sales labels do not reflect the total price charged for the item. (Id. at ¶¶
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`24–27, 32–36). Everything besides the unit prices listed on the yellow labels is correct, i.e., the
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`weight of the item, the total price charged, and the difference between the original price and the
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`sale price. (Id. at ¶¶ 33–35). Plaintiff identified three specific instances in which he personally
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`purchased Weighted Goods with yellow sales labels. See (Id. at ¶¶ 33–35). On April 19, 2018,
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`Plaintiff purchased a spiral ham at a Walmart store in Delray Beach, Florida. (Id. at ¶ 33). The
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`yellow sales label stated that the ham weighed 11.61 pounds at a unit price of $0.64 per pound, but
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`the total price on the yellow label stated $16.45. (Id.). As alleged, Walmart received an extra
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`$9.02 (i.e., the difference between $16.45 and $7.43) on the sale because the unit price reflected
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`that the ham should have only cost $7.43. (Id.).
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`On January 4, 2018, Plaintiff purchased a pork loin at a Walmart store in Davie, Florida.
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`(Id. at ¶ 34). The yellow sales label stated that the pork loin weighed 1.77 pounds at a unit price
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`of $2.28 per pound, but the total price stated $4.05. (Id.). Accordingly, Plaintiff contends that
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`Walmart received an extra $0.02 (i.e., the difference between $4.05 and $4.03) because the pork
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`loin should have only cost $4.03 by calculation of the unit price. (Id.). Finally, Plaintiff purchased
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`another spiral ham at a Walmart store in Orlando, Florida. (Id. at ¶ 35). This time, the yellow
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`sales label stated that the ham weighed 9.13 pounds at a unit price of $0.69 per pound. The total
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`price was listed as $10.10. (Id.). Accordingly, Walmart received an extra $3.80 (i.e., the difference
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`between $10.10 and $6.30) because the ham should have only cost $6.30 as per the listed unit
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`price. (Id.).
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`Plaintiff also identifies thirteen other instances in which Weighted Goods at Walmart stores
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`throughout Florida contained yellow sales labels with incorrect unit prices. (Id. at 36). He does
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`not, however, identify any details pertaining to these additional thirteen instances. (Id.). For
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`example, he does not state what items are included in this list and whether or not anyone actually
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`purchased these particular items. (Id.). He does, however, allege that based on the incorrect unit
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`prices identified throughout the class period, a reasonable consumer would have believed that they
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`were purchasing more of the product than they actually received. (Id. at ¶¶ 24–27, 33–35, 37). As
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`framed in the Amended Complaint, the yellow sales labels are designed to, and do, induce
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`consumers into believing they are getting more of the product for their money. (Id. at 31–35).
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`Plaintiff further contends that he and class members relied on the listed unit prices to their
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`detriment and that he and class members would not have purchased these items or, at least, would
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`have demanded the appropriate price upon purchase had they known the unit prices were incorrect.
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`(Id.).
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`Based on these events, Plaintiff asserts two causes of action against Walmart. (Id. at ¶¶
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`49–71). Count I alleges that these practices constitute a violation of the Florida Deceptive and
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`Unfair Trade Practices Act (“FDUTPA”). (Id. at ¶¶ 49–61). Count II asserts a claim, in the
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`alternative, for unjust enrichment. (Id. at ¶¶ 62–75). Walmart has moved to dismiss the claims
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`for four reasons. (DE 24 at 1–2). First, Walmart contends that Plaintiff’s allegations fail to meet
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`the requisite particularity requirement for claims sounding in fraud. (Id. at 1). Second, Walmart
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`argues that Plaintiff lacks Article III standing to bring a claim because Plaintiff fails to allege that
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`he suffered a concrete injury in fact. (Id. at 2). Third, Walmart argues that the Amended Complaint
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`fails to state a FDUTPA claim. (Id. at 2). Finally, Walmart argues that Plaintiff’s unjust
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`enrichment claim is barred as a matter of law because it is duplicative of his FDUTPA claim. (Id.
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`at 2). For the reasons set forth herein, Defendant Walmart’s Motion to Dismiss is denied.
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`II.
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`LEGAL STANDARD
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`When reviewing a motion to dismiss for failure to state a claim upon which relief can be
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`granted, the Court must accept all factual allegations within the complaint as true and construe
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`them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th
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`Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) only requires that the pleading contain “a short
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`and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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`8(a)(2). “[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,”
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`but it demands more than an unadorned, the-defendant-has-unlawfully-harmed-me accusation.”
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`Coleman v. CubeSmart, 328 F. Supp. 3d 1349, 1359 (S.D. Fla. 2018) (quoting Ashcroft v. Iqbal,
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`556 U.S. 662, 678 (2009)). The pleading must assert enough facts “to state a claim for relief that
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`is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007).
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`A claim for relief is facially plausible if the facts alleged allow the Court to reasonably
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`infer that the Defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678. The
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`allegations need not be such that it is probable that the defendant is liable but it must be more than
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`merely possible that the defendant is liable. Id. “Threadbare recitals of the elements of a cause of
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`action, supported by mere conclusory statements, do not suffice.” Id.
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`A heightened pleading standard must be satisfied for claims sounding in fraud or mistake.
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`Fed. R. Civ. P. 9(b); U.S. ex rel. Matheny v. Medco Health Sols.’, Inc., 671 F.3d 1217, 1222 (11th
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`Cir. 2012). To satisfy Rule 9(b), the party must “state with particularity the circumstances
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`constituting fraud or mistake.” Fed. R. Civ. P. 9(b); Matheny, 671 F.3d at 1222. The particularity
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`requirement serves to put the defendant on notice of the “precise misconduct with which they are
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`charged.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001).
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`III. ANALYSIS
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`In its motion, Walmart asserts four arguments in support of dismissal. Because the issue
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`of standing is ultimately a jurisdictional issue, it should be addressed at the outset. See Stalley ex
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`rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008).
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`Accordingly, section A will address whether Plaintiff has standing to bring this action. Because
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`the same allegations resolve the issues of whether Plaintiff sufficiently pleaded a cause of action
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`under the FDUTPA with enough particularity, those arguments will be addressed together in
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`section B. Section C will address Walmart’s argument that Plaintiff has failed to state a claim for
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`unjust enrichment.
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`A. Standing
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`Walmart contends that Plaintiff’s FDUTPA and unjust enrichment claims should be
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`dismissed under Rule 12(b)(1) because Plaintiff lacks standing. See Fed. R. Civ. P. 12(b)(1); (DE
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`24 at 12). Because Walmart only challenges Plaintiff’s standing on the grounds that Plaintiff has
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`failed to allege an actual injury, the Court will only address that issue.
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`“Because standing is jurisdictional, a dismissal for lack of standing has the same effect as
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`a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).”
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`Stalley, 524 F.3d at 1232. To establish Article III standing, “the plaintiff must have suffered or be
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`imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to
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`the challenged action of the defendant and likely to be redressed by a favorable judicial decision.”
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`Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014). An injury in
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`fact for Article III standing purposes is an invasion of a legally protected interest, which is
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`concrete, particularized, and actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
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`(1992). It may not be conjectural or hypothetical. Id.
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`Walmart argues that the fact that Plaintiff continued purchasing Weighted Goods with
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`incorrect unit prices indicates that he did not suffer any actual harm as a result of Walmart’s pricing
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`practices. Similarly, Walmart contends that because Plaintiff ultimately agreed to pay the correct
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`“total” price for each purchase, he cannot show a particularized injury in fact.
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`In response, Plaintiff points to the three specific instances where he purchased Weighted
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`Goods for a higher price than the unit price listed. (DE 25 at 11; Am. Compl. at ¶¶ 33–35).
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`Specifically, Plaintiff alleges he overpaid for a spiral ham by $9.02, a spiral ham on an additional
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`occasion by $3.80, and overpaid for a pork loin by $0.02. (Am Compl. at ¶¶ 33–35). Accepting
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`these allegations as true and construing them in favor of the complainant, as the Court must,
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`Plaintiff has alleged a particularized and concrete harm. Pielage, 516 F.3d at 1284. The concrete
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`and particular harm alleged is that he was overcharged for Weighted Goods. Contrary to
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`Walmart’s assertion, (DE 24 at 13), the fact that Plaintiff continued to purchase Weighted Goods
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`does not negate his injury but may in fact highlight the pervasive effect of the alleged misconduct.
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`See Fox v. Loews Corp., 309 F.Supp.3d 1241, 1247–48 (S.D. Fla. 2018) (rejecting defendant’s
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`standing argument that plaintiff failed to allege any harm because he paid disputed gratuities
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`charges, “. . . whether he had the right or even the knowledge to contest the charges at the time he
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`paid them . . . does not cancel his injury).
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`Walmart also points out that the yellow sales labels stated the correct weight and correct
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`price of the Weighted Goods. (DE 24 at 12–13). Framed in this light, Plaintiff and class members
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`suffered no harm because they received the listed weight at the listed price. (Id.). This argument
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`is unpersuasive. The alleged harm is that throughout the class the period, consumers overpaid for
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`Weighted Goods and/or believed they were receiving more value than they actually were because
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`the unit prices were incorrect. (Am. Compl. at ¶¶ 24–27, 33–35). Therefore, the Court finds that
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`Plaintiff has sufficiently alleged a concrete and particularized “injury in fact” as required to
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`establish Article III standing.
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`B. Plaintiff has Sufficiently Pled a Claim Under the FDUTPA with Particularity.
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`Walmart asserts that Plaintiff has failed to satisfy the pleading requirements of Rule 9(b).
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`(DE 24 at 8). Specifically, Walmart argues that Plaintiff has failed to set forth particular allegations
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`stating the party responsible for the incorrect unit prices, how the pricing practices were deceptive,
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`and how the pricing practices misled Plaintiff and other similarly situated consumers. Id. at 8–9.
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`The crux of Walmart’s position is that Plaintiff has failed to set forth allegations showing that
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`consumers relied on the incorrect unit prices when making decisions to purchase Weighted Goods.
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`Id. at 9–12.
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`A FDUTPA claim has three elements: “(1) a deceptive act or unfair practice; (2) causation;
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`and (3) actual damages.” YMD Records, LLC v. Ultra Enters.’, Inc., 361 F. Supp. 3d 1258, 1267
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`(S.D. Fla. 2019) (quoting Blackhawk Yachting, LLC v. Tognum Am., Inc., No. 12-14208-CIV, 2013
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`WL 12199875, at *4 (S.D. Fla. Apr. 22, 2013)). To obtain relief, a consumer must plead both that
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`the conduct complained of was unfair and deceptive and that the consumer was aggrieved by the
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`unfair and deceptive act. Macias v. HBC of Fla., Inc., 694 So. 2d 88, 90 (Fla. 3d DCA 1997). The
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`FDUTPA is designed to protect consumers from “unfair or deceptive acts and practices which
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`diminish the value or worth of the goods or services purchased by the consumer.” Urling v. Helms
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`Exterminators, Inc., 468 So. 2d 451, 454 (Fla. 1st DCA 1985). To assert a claim under the
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`FDUTPA, reliance is not required; the plaintiff need only show that a reasonable person would
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`have been deceived. See, e.g., Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1283 (11th Cir.
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`2011) (noting that district court’s analysis that actual reliance is not required to state a FDUPTA
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`claim was correct).
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`Under Rule 9(b), Plaintiff has sufficiently pled a cause of action under the FDUTPA. To
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`meet the requirements of Rule 9(b) the complaint must state, “(1) precisely what statements or
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`omissions were made in which documents or oral representations; (2) the time and place of each
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`such statement and the person responsible for making (or, in the case of omissions) not making
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`them; (3) the content of such statements and the manner in which they misled the plaintiff; and (4)
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`what the defendant obtained as a consequence of the fraud.” U.S. ex rel. Clausen v. Lab. Corp. of
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`Am., Inc., 290 F.3d 1301, 1310 (11th Cir. 2002) (quoting Ziemba, 256 F.3d at 1202).
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`The Court recognizes that the Southern District is split on the issue of whether Rule 9(b)
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`applies to FDUTPA claims. Compare Toback v. GNC Holdings, Inc., No. 13-80526-CIV, 2013
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`WL 5206103, at *2 (S.D. Fla. Sept. 13, 2013) (finding that Rule 9(b) cannot serve as a basis to
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`dismiss FDUTPA claims) with Begualg Mgmt. Inc. v. Four Seasons Hotel Ltd., No. 10-22153-
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`CIV, 2011 WL 4434891, at *5 (S.D. Fla. Sept. 23, 2011) (finding that Rule 9(b) applies to
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`FDUTPA claims). Because this Court has applied the heightened pleading requirement to
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`FDUTPA claims in the past, the Court will apply Rule 9(b) to Plaintiff’s claims. See Begualg,
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`2011 WL 4434891, at *5.
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`In its amended complaint, Plaintiff identifies precise statements placed on the labels of
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`Weighted Goods that Plaintiff claims constitute unfair and deceptive practices. (Am. Compl. ¶¶
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`33–35). For example, Plaintiff alleged that he personally purchased Weighted Goods on three
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`separate occasions where the unit price stated on the label was incorrect. (Id.). Plaintiff identified
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`the precise dates and locations of Walmart stores where he made these purchases. (Id. at ¶¶ 33–
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`35). Further, Plaintiff has sufficiently identified Walmart as the party responsible for making the
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`statements, “Mr. Kukorinis read and relied upon false and misleading statements prepared and
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`approved by Walmart and its agents . . .” (Id. at ¶ 10). Walmart argues that these allegations do
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`not establish that the unit price mistakes were not isolated errors or that the mistakes did not result
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`from a faulty labeling machine, computer glitch, or human error. (DE 24 at 8). However, Plaintiff
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`is not required to make such a showing at the pleading stage—even under the 9(b) standard. Such
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`a showing is more properly addressed at the summary judgment stage of litigation. Plaintiff need
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`only plead, “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face’” and which rises above the level of speculation. Iqbal, 556 U.S. at 678 (quoting
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`Twombly, 550 U.S. at 570). Taking Plaintiff’s factual allegations as true, again as the Court must,
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`Plaintiff has satisfied the first two pleading requirements under Rule 9(b).
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`The Court now turns to whether the content of the statements misled Plaintiff and what
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`Walmart received as a result of the statements. Walmart contends that Plaintiff has failed to
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`establish exactly how the incorrect unit prices were misleading or that he factored unit-prices when
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`deciding to purchase Weighted Goods. (DE 24 at 10). This argument is unpersuasive. Contrary
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`to Walmart’s contentions, Plaintiff specifically alleged that he read and relied upon the unit prices
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`in making purchases, and that he “understood that he was paying a specific unit price for the item
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`and that such pricing was being offered by Walmart for a limited time due to the imminent
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`expiration date of the item.” (Id. at ¶ 10). As alleged, the incorrect unit prices induced Plaintiff
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`and others similarly situated into believing they were getting more for their money— “consumers
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`did not receive the promised value for the Weighted Goods they purchased during the class
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`period.” (Id. at ¶ 31–35). Walmart counters that because Plaintiff continued to purchase Weighted
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`Goods with incorrect unit prices, the only plausible inference is that Plaintiff was ignoring the unit
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`prices altogether and thus never relied on the incorrect unit prices in making purchases. (DE 24 at
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`10). While this is a plausible inference, another plausible inference is that the misrepresentations
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`were so subtle that Plaintiff and other reasonable consumers failed to notice until a closer
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`inspection was made. Again, this fact may highlight the pervasive effect of the alleged misconduct.
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`See Fox, 309 F.Supp.3d at 1247–48.
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`Finally, Plaintiff has sufficiently alleged what benefit Walmart received as a consequence
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`of its alleged unfair and/or deceptive conduct. Plaintiff alleges that Walmart listed a unit price for
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`Weighted Items placed on sale but charged more than the unit price at check out. (Am. Compl. At
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`¶¶ 33–35). Regardless of whether the total price was listed on both the original and the sales labels,
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`the fact remains that, as alleged, Walmart represented Weighted Goods as costing one price per
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`unit but charged a different price. (Id.).
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`Walmart also contends that even if Plaintiff has satisfied Rule 9(b), he has still failed to
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`state a claim upon which relief can be granted. In support of its motion, Walmart asserts that
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`Plaintiff’s FDUTPA claim is barred because the incorrect unit prices are contradicted by the
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`correctly stated sales prices and weights. (DE 24 at 14). This may be a reasonable interpretation
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`of the facts, but it is not the only interpretation. The gravamen of the Amended Complaint is that
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`Walmart overcharges for Weighted Goods. (Am. Compl. at ¶ 1).
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`Further, Walmart relies on distinguishable cases in support of its theory. In Vital
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`Pharmaceuticals, the court addressed a FDUTPA claim in the summary judgment context. Vital
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`Pharm., Inc. v. Balboa Capital Corp., No. 14-62469-CIV, 2016 WL 4479370, at *6 (S.D. Fla.
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`Aug. 25, 2016). The dispute revolved around a lease contract in which plaintiffs believed that they
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`were entitled to a purchase option upon the termination of the lease. Id. The court rejected the
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`plaintiff’s contentions that they relied on pre-lease and post-lease representations because the
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`contract clearly indicated that all leased equipment would remain the property of the lessor. Id. at
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`*7.
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`First, Vital Pharmaceuticals was resolved at the summary judgment stage, not on a motion
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`for dismissal. Id. at *6–7. More importantly, the legal principle on which Walmart relies does not
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`apply under the facts as alleged by Plaintiff. In Vital Pharmaceuticals, the parties had a valid
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`written agreement that contradicted the plaintiff’s assertions of misrepresentations. Id. at *6.
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`Here, the alleged unfair and deceptive conduct is that Walmart incorrectly stated the unit prices on
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`labels of Weighted Goods. (Am. Compl. at ¶ 2). There is no agreement between Walmart and
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`Plaintiff that would resolve the dispute over whether Walmart’s pricing practices are in fact
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`deceptive or unfair. That issue is best resolved by a fact-finder.
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`Walmart also cites Dorestin, another distinguishable case in which there was a written
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`contract that resolved the dispute. Dorestin v. Hollywood Imports, Inc., 45 So. 3d 819, 824–25
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`(Fla. 4th DCA 2010). In Dorestin, plaintiffs asserted claims against a car dealership under the
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`FDUTPA alleging misrepresentations in connection to a requirement to purchase extended
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`warranties for a vehicle. Id. at 825. The plaintiffs claimed that the dealership’s employees
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`misrepresented the fact that they were required to purchase an extended warranty for a vehicle they
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`were purchasing. Id. The court reversed a jury verdict in favor of the plaintiffs on their FDUTPA
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`claim because the extended warranty contract expressly provided that the warranty was not
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`required in order to obtain financing for the vehicle. Id. The Court finds Dorestin distinguishable
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`for the same reasons Vital Pharmaceuticals is distinguishable—the alleged deceptive and unfair
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`conduct in the present dispute has nothing to do with an agreement between the parties. See Vital
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`Pharmaceuticals, 2016 WL 4479370, at *6; Dorestin, 45 So. 3d at 824–25.
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`Walmart further asserts that Plaintiff’s amended complaint fails to allege actual damages.
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`(DE 24 at 15). Actual damages are an essential element of a FDUTPA claim. YMD Records, 361
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`F. Supp. 3d at 1267. Walmart contends that to sufficiently plead damages, Plaintiff must allege a
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`difference between the market value of the Weighted Goods he purchased and the market value in
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`the condition in which the Weighted Goods should have been delivered. Mantz v. TRS Recovery
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`Servs.’, Inc., No. 11-80580-CIV, 2011 WL 5515303, at *2–3 (S.D. Fla. Nov. 8. 2011); (DE 24 at
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`13). In response, Plaintiff points out that the alleged damages are the differences in the sales price
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`and the cost of the Weighted Goods as determined by reference to the unit price. (DE 25 at 14).
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`The Court finds that Plaintiff has sufficiently pled actual damages. Throughout the Amended
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`Complaint, Plaintiff consistently alleges that Walmart listed a unit price that did not reflect the
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`price charged at check out, resulting in Walmart receiving extra profits. See (Am. Compl. at ¶¶
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`24–27, 33–35).
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`Plaintiff has sufficiently pled a claim under the FDUTPA. Plaintiff alleged Walmart listed
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`sale-priced items with incorrect unit prices. As a result of the listed unit prices, Plaintiff and others
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`similarly situated purchased Weighted Goods from various Walmart Stores. The damages plaintiff
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`and class members suffered are found in the difference between the total prices paid and item costs
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`as calculated by the listed unit prices. It is not unreasonable to this Court that an objectively
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`reasonable purchaser could be deceived by the misstated unit prices, especially in the context of
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`comparison shopping. Therefore, Plaintiff’s FDUPTA claim survives dismissal.
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`C. Unjust Enrichment
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`Finally, Walmart argues that Plaintiff’s unjust enrichment claim fails for two reasons.
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`First, Walmart contends that Plaintiff cannot assert a claim for unjust enrichment that is based on
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`the same factual predicate as his FDUTPA claim. Second, Walmart contends that Plaintiff’s unjust
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`enrichment claim fails because Plaintiff did not allege that he conferred a benefit on Walmart that
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`was inequitably retained. (DE 24 at 17). Because Walmart argues that Plaintiff’s unjust
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`enrichment claim fails for the same reasons that his FDUTPA claim fails, the Court need only
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`address the first objection.
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`“There are three elements of an unjust enrichment claim under Florida law: first, the
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`plaintiff has conferred a benefit on the defendant; second, the defendant voluntarily accepted and
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`retained that benefit; and finally, the circumstances are such that it would be inequitable for the
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`defendants to retain the benefit without paying for it.” Zamber v. Am. Airlines, Inc, 282 F. Supp.
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`3d 1289, 1301 (S.D. Fla. 2017). This Court has previously stated that, “where the Court is limited
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`to the face of the complaint, Plaintiff’s unjust enrichment claim may be appropriately pleaded in
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`the alternative.” Begualg, 2011 WL 4434891, at *7 (citing Fed. R. Civ. P. 8(d)(2) and (3)).
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`Further, to recover on an unjust enrichment claim, the plaintiff must allege that he has no adequate
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`remedy at law. Charouhis v. American Automobile Insurance Company, No. 11-24547-CIV, 2012
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`WL 13014693, at *5 (S.D. Fla. June 18, 2012).
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`According to the above authority, Plaintiff’s unjust enrichment claim survives. Plaintiff
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`alleges that he overpaid for Weighted Goods, thus conferring a benefit unto Walmart in the form
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`of increased profits. (Am. Compl. at ¶ 33–35). Plaintiff also alleges that Walmart voluntarily
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`accepted overpayment for Weighted Goods. (Id.). As alleged by Plaintiff, it would be inequitable
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`to allow Walmart to retain the extra profits received from sales of items listed with incorrect unit
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`Case 1:19-cv-20592-JEM Document 30 Entered on FLSD Docket 06/01/2020 Page 14 of 14
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`prices. (Am. Compl. at ¶ 71). Further, the Court rejects Walmart’s contention that Plaintiff’s
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`unjust enrichment claim must fail because it shares a factual predicate with Plaintiff’s FDUTPA
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`claim. (DE 24 at 17). As discussed above, Plaintiff can assert a claim for unjust enrichment in the
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`alternative so long as he expressly alleges that the claim is being brought in the alternative and that
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`no adequate legal remedy exists. Begualg, 2011 WL 4434891, at *7. Plaintiff satisfied this burden
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`in paragraphs 63 and 74 where he expressly states that the, “[u]njust Enrichment cause of action
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`herein is pled in the alternative to Plaintiff’s FDUTPA cause of action alleged above,” and later,
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`“Plaintiffs and class members have no adequate remedy at law.” (Am. Compl. at ¶¶ 63, 74). At
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`this stage, Plaintiff’s cause of action for unjust enrichment survives.
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`IV. CONCLUSION
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`For the foregoing reasons, Walmart’s Motion to Dismiss Plaintiff’s Amended Complaint
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`(DE 24) is DENIED.
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`DONE AND ORDERED in Chambers, Miami, Florida, this 29th day of May 2020.
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`_________________________________
` JOSE E. MARTINEZ
` UNITED STATES DISTRICT JUDGE
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`Copies provided to:
`Magistrate Judge Otazo-Reyes
`All Counsel of Record
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