ALLSTATE INSURANCE COMPANY, ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY and ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiffs, v. AUTO GLASS AMERICA, LLC and CHARLES ISALY, Defendants.
Case No: 6:18-cv-2184-Orl-41LRH
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
September 30, 2019
ORDER
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss (“Motion,” Doc. 22) and Plaintiffs’ Response (Doc. 29). As set forth below, the Motion will be granted in part and denied in part.
I. BACKGROUND
Plaintiffs are insurance companies that offer insurance policies for, among other things, automobiles. (Compl., Doc. 1, at 5). Through these insurance policies, Plaintiffs allege that they have contractual relationships with their insured customers. (Id. at 29). Defendant Auto Glass America, LLC, and its owner Charles Isaly, are alleged to be in the business of replacing automobile glass, including replacing damaged windshields. (Id. at 5).
“Florida [law] requires that insurance companies, including Plaintiffs, cover repair or replacement of damaged windshields of their insureds who have comprehensive coverage, [and i]nsureds are not required to pay a deductible on these claims.”1 Gov’t Emps. Ins. Co. v. Clear Vision Windshield Repair, L.L.C., No. 6:16-cv-2077-Orl-28TBS, 2017 U.S. Dist. LEXIS 47353, at *2 (M.D. Fla. Mar. 29, 2017) (citing
Plaintiffs claim that Defendants “pressure” Plaintiffs’ insured customers into hiring Defendants for windshield replacements.2 (Id.). Defendants then allegedly obtain an assignment of benefits from Plaintiffs’ insured customers “without the insureds’ knowledge or consent.” (Id. at 4). Defendants, through the assignment of
Consequently, Plaintiffs have refused to pay Defendants more than what it believes are “the competitive and prevailing market rates for windshield replacements.” (Id.). As a result, Defendants have then purportedly “filed over 1,400 lawsuits” against Plaintiffs to recover the
“overages”—the difference between the invoice amount and Plaintiffs’ payment. (Id.; see also Doc. Nos. 15, 16). At the time of the Complaint, Plaintiffs allege that “[t]he current amount of overages . . . exceeds $200,000.” (Doc. 1 at 4). And Plaintiffs claim that they have “incurred litigation costs and fees in 2017 and 2018 alone exceeding $400,000.” (Id. at 5).
Plaintiffs filed the instant lawsuit, which asserts claims for tortious interference, violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), violations of Florida’s Home Solicitation Sales Act (“FHSSA”), violations of the Federal Trade Commission’s (“FTC”) Rule Concerning Cooling-off Period for Sales Made at Homes or at Certain Other Locations (“FTC Rule”), violations of the Florida Motor Vehicle Repair Act (“FMVRA”), and unjust enrichment. (See generally Doc. 1). Plaintiffs seek injunctive and declaratory relief and request actual damages. (Id.).
Defendants move to dismiss the Complaint pursuant to
II. RULE 12(b)(1)
A. Legal Standard
Pursuant to
B. Article III Standing Analysis
Article III standing is a threshold inquiry, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998), so the Court will address it first. In order to bring a case in federal court, a plaintiff must establish standing under Article III of the United States Constitution. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992). To establish Constitutional, or Article III, standing, a plaintiff must show: “1) that [it] personally has suffered an actual or prospective injury as a result of the putatively illegal conduct; 2) that the injury can be fairly traced to the challenged conduct; and 3) that the injury is likely to be redressed through court action.” Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987).
Defendants assert that Plaintiffs have failed to establish Article III standing because: Plaintiffs have not demonstrated that any of their claims fall within coverage of the consumer protection statutes upon which their claims are based; Plaintiffs have not established that they have suffered an injury-in-fact; and Plaintiffs have not shown a causal connection between the purported injury and the complained of conduct.
To establish Article III standing, “it is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to just one of many claims he wishes to assert. Rather, each claim must be analyzed separately.” Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987). Therefore, the Court proceeds to look at whether Plaintiffs have standing to bring each of the ten Counts they have asserted in the Complaint.3
1. Counts II, III, IV, VII, and VIII—FDUTPA Claims
Counts II, III, IV, VII, and VIII of Plaintiffs’ Complaint are based on alleged violations of FDUTPA. FDUTPA makes illegal “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
Defendants assert that “Plaintiffs are not consumers involved in consumer transactions with [Defendants],” and therefore are not covered by the protections of FDUTPA. (Doc. 22 at 5). Plaintiffs claim
At least three of Florida’s District Courts of Appeal4 have categorically held that “an entity [i]s not required to be a consumer in order to have standing to bring a FDUTPA claim.”5 Feijoo, 2019 U.S. Dist. LEXIS 93343, at *14 (quoting Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach Cty., Inc., 169 So. 3d 164, 169 (Fla. 4th DCA 2015) (collecting cases)); see also Envtl. Mfg. Sols., LLC v. Fluid Grp. Ltd., No. 6:18-cv-156-Orl-40KRS, 2018 U.S. Dist. LEXIS 131382, at *48–50 (M.D. Fla. May 9, 2018) (holding same). Absent a clear direction from the Florida Supreme Court on an issue, this Court is “bound to follow” decisions of the state’s intermediate appellate courts unless there is some persuasive indication that the Florida Supreme Court would decide the issue differently. Nunez v. Geico Gen. Ins. Co., 685 F.3d 1205, 1210 (11th Cir. 2012) (citation omitted). Thus, Defendants’ argument that Plaintiffs, as insurers, cannot be protected by FDUTPA fails.
Defendants’ arguments also fail regarding injury-in-fact and causal connection for the FDUTPA claims. An injury-in-fact is “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). The injury must be “particularized,” meaning it “must affect the plaintiff in a personal and individual way.” Id. (quoting Lujan, 504 U.S. at 560 n.1). Additionally, the injury must be “concrete,” meaning “it
must actually exist.” Id. The Supreme Court in Spokeo emphasized that a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. at 1549.
Defendants argue that “the Complaint contains no allegations that any of [Defendants’] true consumer-customers sustained any damages, actual or otherwise, or were harmed by Defendants in any way.” (Doc. 22 at 9). Defendants miss the point. FDUTPA does not only protect consumers, as discussed above. Plaintiffs allege that they were injured by Defendants’ actions in the following ways.6 Plaintiffs claim that the average invoice for a windshield replacement done by Defendants is approximately $900, whereas the average for other glass vendors in Florida is approximately $350. Plaintiffs refusal to pay the full invoice amount has resulted in “overages” that Defendants are seeking from Plaintiffs, which exceed $200,000. Plaintiffs also state in their Complaint that they have incurred litigation costs and fees resulting from Defendants’ lawsuits against Plaintiffs seeking payment of the overages.
While the costs of the instant lawsuit are not a cognizable injury sufficient to establish standing, Steel Co., 523 U.S. at 107–08, the underlying lawsuits (“over 1,400” of them, (Doc. 1 at 4)) and associated expenses “exceeding $400,000,” (id. at 5), represent an actual concrete and particularized injury-in-fact. Sliwa v. Bright House Networks, LLC, No. 2:16-cv-235-FtM-29MRM, 2018 U.S. Dist. LEXIS 52509, at *9 (M.D. Fla. Mar. 29, 2018) (holding that “exposure to liability in [a] lawsuit constitutes a sufficient injury-in-fact”) (citing Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 1265 (11th Cir. 2015)). Plaintiffs have sufficiently alleged that they have been “expos[ed]” to liability in the underlying lawsuits. Id.
And notably, even if the underlying lawsuits were not a cognizable injury-in-fact, Plaintiffs suggest that some of the windshield replacements were unnecessary in the first place and that “at least some of the damaged windshields could have been properly and safely repaired at a much lower cost.” (Doc. 1 at 4). Thus, Plaintiffs have alleged an injury in the form of overpaying for windshield replacements when they should have only had to pay for lower repair costs.
Clearly, these purported injuries are fairly traceable to the alleged FDUTPA violations. Traceability is a “relatively modest” burden, Bennett v. Spear, 520 U.S. 154, 171 (1997), and “even harms that flow indirectly from the action in question can be said to be ‘fairly traceable’ to that action for standing purposes.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003); see Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391 n. 6 (2014) (“Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.”).
The purpose of FDUTPA is to “protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.”
Defendants do not challenge the redressability element of standing, but that element is also met. “[A] favorable decision on the [FDUTPA] claim[s] will redress the injury to the extent Plaintiff recovers the monies it paid on the basis of [FDUTPA violations].” Deere Constr., LLC v. Cemex Constr. Materials Fla., LLC, 198 F. Supp. 3d 1332, 1340 (S.D. Fla. 2016). Plaintiffs have established Article III standing on the FDUTPA claims, so they will not be dismissed on this basis.
2. Counts V, VI, and X—Non-FDUTPA Claims
As to Counts V, VI, and X, Defendants argue that if Plaintiffs lack standing under FDUTPA, then Plaintiffs also lack standing on the non-FDUTPA claims because those claims “are all premised on purported FDUTPA violations.” (Doc. 22 at 10). The Court finds this argument to be an ineffective attempt at getting these claims dismissed. While Counts VII and VIII do allege per se violations of FDUTPA as a result of the alleged non-FDUTPA statutory violations, Counts V, VI, and X allege stand-alone claims independent of FDUTPA and are adequately supported by alleged facts and legal authority. Count V is based on alleged violations of FHSSA and the FTC Rule, Count VI is based on alleged violations of FMVRA, and Count X is a common law claim for unjust enrichment. Defendants even admit that these are “stand-alone claims,” (Doc. 22 at 10
lost resulting from the statutory violations. Accordingly, Plaintiffs have established Article III standing on the non-FDUTPA claims.
III. RULE 12(b)(6)
A. Legal Standard
“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”
B. Failure to State a Claim Analysis
“[A]ccept[ing] the factual allegations in the complaint as true and constru[ing] them in a light most favorable to the [Plaintiffs],” United Techs, 556 F.3d at 1269, Plaintiffs easily survive Defendants’ 12(b)(6) motion to dismiss on all but two Counts. The Court will analyze each Count in turn.8
1. Count I—Tortious Interference
The elements of tortious interference are: “(1) the existence of a business relationship [or contract]9 . . . (2) knowledge
tortious interference, and—accepting Plaintiffs’ allegations as true at this stage of the proceedings11—Defendants’ Rule 12(b)(6) motion to dismiss is due to be denied as to Count I.
2. Counts II, III, IV—FDUTPA Claims
As a threshold matter, this Court declines to impose the heightened pleading standard set forth in
plaintiff’s claims and the grounds upon which they are based, without the risk of subjecting the defendant to specious claims. Id. at *12–13. “Because
Applying
Plaintiffs have sufficiently alleged each of the required elements. The deceptive and unfair acts alleged by Plaintiffs are detailed in the section of the Complaint titled “[Defendants’] Scheme to Obtain Payment for Non-market Rates.” (Doc. 1 at 14). Plaintiffs allege that Defendants have been deceptive and unfair in their advertising and solicitation of Plaintiffs’ insured customers by, among other things: advertising free windshield replacements to Plaintiffs’ insured customers; offering incentives to Plaintiffs’ insured customers for windshield replacements—cash for old windshields, gift cards; advertising OEM glass when Defendants actually use non-OEM glass; and soliciting Plaintiffs’ insured customers in parking lots, places of employment, and at their homes. Plaintiffs allege that Defendants have also made misrepresentations and omissions to Plaintiffs’ insured customers by: soliciting customers through promises of payment and other incentives that are not actually paid; misrepresenting Plaintiffs’ working relationship
Regarding damages and causation, the Court refers to the standing analysis above, which details the causation and actual damages alleged by Plaintiffs. Plaintiffs have alleged actual
damages in the amount of the alleged overages and the costs of the underlying litigation, and Plaintiffs have alleged that the deceptive and unfair practices by Defendants have caused these damages. It is not much of an inferential leap16 to come to the conclusion that but for Defendants’ alleged actions, Plaintiffs would not be engaged in over 1,000 lawsuits with Defendants.17 Thus, Plaintiffs have sufficiently pleaded the elements of an FDUTPA claim to survive a
3. Counts VII and VIII—FDUTPA Per Se Violation Claims
Applying
Preliminarily, Defendants argue that Plaintiffs are not consumers and therefore cannot bring the FDUTPA claims that are
Count VII alleges per se violations of FDUTPA based on violations of FHSSA and the FTC Rule. FHSSA makes it “unlawful for any person to conduct any home solicitation sale”18 without first obtaining a permit.
FHSSA only states that it applies to “sale . . . of consumer goods or services with a purchase price in excess of $25.”
to the contrary. Similarly, the FTC Rule applies to “[a] sale . . . of consumer goods or services” of $25 or more and defines “purchase price” as “[t]he total paid or to be paid for the consumer goods.”
The FDUTPA element of actual damages, discussed above, applies in equal force to Count VII. As to causation, it is a reasonable inference that but for Defendants’ alleged violations of FHSSA and the FTC Rule, Defendants would not have obtained the business of Plaintiffs’ insured customers, and Defendants would not have needed to sue Plaintiffs for the allegedly unpaid overages. Thus, Plaintiffs have sufficiently pleaded the elements of a FDUTPA claim to survive a
Count VIII alleges per se violations of FDUTPA based on violations of FMVRA. FMVRA requires any “motor vehicle repair shop” to provide customers with “a written repair estimate” when “the cost of the repair work will exceed $100 to the customer.”
FMVRA applies when “the cost of [the] repair work will exceed $100 to the customer.”
Plaintiffs’ argument is well taken. There may be an underlying factual question about whether their insured customers could be on the hook for the cost of the windshield replacement. However, this still would not allow a claim under FMVRA here as the statute only applies to customers. Plaintiffs are not the customers, per the statutory definition. Thus, Plaintiffs are not covered by FMVRA, and Count VIII is due to be dismissed.
4. Counts V, VI, and X—Unjust Enrichment
Count V asserts a claim for unjust enrichment based on alleged violations of FHSSA and the FTC Rule. Count VI is a claim for unjust enrichment based on alleged violations of FMVRA. And Count X is based on Defendants allegedly replacing windshields that should have been repaired. The purported bases of the statutory violations are discussed above. A claim for unjust enrichment must demonstrate 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) (citing Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237, 1241 n. 4 (Fla. 2004)).
These elements are easily satisfied for Counts V and X. Plaintiffs allege that they “have conferred a benefit on [Defendants], in the form of payments on windshield claims, and [Defendants] ha[ve] accepted and retained those benefits.” (Doc. 1 at 38, 47). For Count V, Plaintiffs allege that this benefit has been unjustly conferred because the payments only resulted from violations of FHSSA and the FTC Rule.19 For Count X, Plaintiffs allege that the payments were unjustly conferred because the windshields should have been repaired at a lower cost than
Plaintiffs paid for replacement. Plaintiffs also set forth detailed factual allegations about why they believe it would be inequitable for Defendants to retain those payments. (See Doc. 1 at 24–29).
Having properly pleaded the elements for a claim of unjust enrichment in both Counts V and X, the Motion with regards to those Counts is due to be denied. However, because the underlying alleged violation of FMVRA is due to be dismissed, as discussed above, Count VI—which is based on alleged FMVRA violations—will also be dismissed.
5. Count IX—Declaratory Judgment
Count IX of the Complaint asserts a claim for declaratory relief pursuant to the Declaratory Judgment Act.
Defendants argue that Plaintiffs’ claim for declaratory judgment should be dismissed because it “is nothing more than a mash-up of all prior counts and is duplicative of the multiple requests for declaratory relief asserted as part of the FDUTPA claims.” (Doc. 22 at 32). Additionally, Defendants argue that this claim should be dismissed because the Declaratory Judgment Act does not allow for adjudication of past conduct. Both of these arguments fail.
“Motions to dismiss made under
IV. ABSTENTION
As a threshold matter, Defendants assert that their abstention argument is a factual attack under
A. Colorado River Abstention
Defendants make an argument for abstention under two separate doctrines. First, Defendants argue that this Court should abstain from adjudicating this case pursuant to Colorado River abstention.20 Colo. River Water Conser. Dist. v. United States, 424 U.S. 800 (1976). Plaintiffs argue that abstention under Colorado River is not warranted.
“Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Id. Under the Colorado River doctrine, “abstention is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Id. That is, “[a]bdication of the obligation to decide cases can be justified under this doctrine only in . . . exceptional circumstances.” Id. Furthermore, “[c]onsiderations supporting the other abstention doctrines are ‘weightier’ than the considerations supporting Colorado River abstention. Therefore, Colorado River abstention is permissible in fewer circumstances than are the other abstention doctrines, which themselves carve out only slender exceptions to the robust duty to exercise jurisdiction.” Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1331 (11th Cir. 2004) (quoting Colorado River, 424 U.S. at 818).
“[T]he Colorado River analysis is limited to situations in which federal and state proceedings involve ‘substantially the same parties and substantially the same issues.’” Baker v. Warner/Chappell Music, Inc., 759 F. App’x 760, 763 (11th Cir. 2018) (quoting Ambrosia, 368 F.3d at 1330). The Eleventh Circuit has deduced seven factors that must be weighed in determining whether Colorado River abstention is permissible: “(1) whether the state or federal court has assumed jurisdiction over any property at issue; (2) the relative inconvenience of the federal forum; (3) the likelihood of piecemeal litigation; (4) the order in which the courts obtained jurisdiction; (5) whether state or federal law will be applied; (6) whether the state court can adequately protect the parties’ rights; and (7) the vexatious or reactive nature of either the federal or the state litigation.”21 Id. (quotations omitted).
The first factor weighs against abstention, as no property is involved in this case. Id. at 1332 (“Because the relevant cases are not proceedings in rem, neither court has jurisdiction over property, and the first Colorado River factor does not favor abstention.”).
The second factor—relative inconvenience of the federal forum—also weighs against abstention. “This factor should focus primarily on the physical proximity of the federal forum to the evidence and witnesses.” Id. Here, all of the pending state actions identified by the parties are in various Florida state courts. When “the federal forum and the state forum are equally convenient[,] this factor . . . cuts against abstention.” Jackson-Platts v. GE Cap. Corp., 727 F.3d 1127, 1141 (11th Cir. 2013).
The third factor—the likelihood of piecemeal litigation—weighs heavily against abstention and is potentially the most persuasive factor here. Ambrosia, 368 F.3d at 1332 (noting that “no one factor is necessarily determinative,” and that “the weight to be given to any one factor may vary greatly from case to case” (quoting Colorado River, 424 U.S. at 818; Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983))); Moorer, 374 F.3d 994, 997 (11th Cir. 2004). While the parties disagree on the precise number of small claims cases pending in state courts throughout Florida, the parties agree that they number over 1,000. And there appears to be no end in sight to the continued filing of these cases unless and until the underlying issues between the parties are resolved. This Court is better situated to analyze all of the underlying issues between the parties than state court judges scattered throughout the state, each handling only a handful of the small claims cases. Consol. Am. Ins. Co. v. Hinton, 845 F. Supp. 1515, 1520 (M.D. Fla. 1994) (finding that the third factor weighed against abstention when the federal action was “more comprehensive” and involved more parties than the state action).
The fourth factor—the order in which the courts obtained jurisdiction—also weighs slightly against abstention, though it is not determinative. The Supreme Court clarified that this factor “should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.” Ambrosia, 368 F.3d at 1333 (quoting Moses, 460 U.S. at 21). Here, the state court lawsuits were clearly filed first, but it is unclear how much progress has been made in those proceedings. Furthermore, it appears
The fifth factor—whether state or federal law will be applied—does not favor abstention. “[This] factor . . . ‘favors abstention only where the applicable state law is particularly complex or best left for state courts to resolve.’” Baker, 759 F. App’x at 764 (quoting Jackson-Platts, 727 F.3d at 1143). That is not the situation presented here. This Court has handled numerous FDUTPA cases and “is fully competent to adjudicate” the instant case. Hall v. Sargeant, No. 9:18-CV-80748-BLOOM/REINHART, 2018 U.S. Dist. LEXIS 171099, at *17 (S.D. Fla. Oct. 1, 2018).22
The sixth factor—adequate protection of the parties’ rights—is neutral. “The fact that both forums are adequate to protect the parties’ rights merely renders this factor neutral on the question of whether the federal action should be dismissed. This factor will only weigh in favor or against dismissal when one of the forums is inadequate to protect a party’s rights.” Noonan S., Inc. v. Cty. of Volusia, 841 F.2d 380, 383 (11th Cir. 1988) (emphasis in original). Here, Defendants only state that Florida courts are adequate to protect the parties’ interests. This Court agrees, but the federal forum is equally adequate to protect the parties’ rights. As both forums are adequate to protect the rights asserted by each of the parties, this factor is neutral. Id.
The seventh factor is neutral as well. With this factor, the Court may consider “the vexatious or reactive nature of either the federal or the state litigation.” Lops v. Lops, 140 F.3d 927, 961 (11th Cir. 1998) (quoting Moses, 460 U.S. at 18 n.20). While Defendants suggest that it is “obvious” that the instant action is reactive to Plaintiffs’ lack of satisfaction with the state court
proceedings, they provide no evidence of this. (Doc. 22 at 15). Even if this statement is true—that Plaintiffs are displeased with the results of the state court proceedings—it does not necessarily follow that the instant case should be barred. Clay v. AIG Aero. Ins. Servs., 61 F. Supp. 3d 1255, 1265 (M.D. Fla. 2014) (finding that a previous unfavorable ruling in state court does not alone render a case reactive or vexatious). As “Plaintiffs have stated what appear on the face of their . . . Complaint to be legitimate claims for relief . . . [t]he Court finds nothing in the record to suggest that Plaintiffs filed this lawsuit for any improper purpose. As such, this factor does not warrant abstention.” Id.
“After carefully weighing the Colorado River factors and extending, as [this Court] must, a heavy bias in favor of exercising jurisdiction,” the Court finds it inappropriate to abstain from adjudicating this case on the basis of the Colorado River doctrine. Ambrosia, 368 F.3d at 1332. Therefore, the Court will not abdicate its “virtually unflagging obligation” to exercise jurisdiction, Colorado River, 424 U.S. at 813, 817, and Defendants’ request for the Court
B. Brillhart Abstention
Next, Defendants argue that this Court should abstain and decline jurisdiction pursuant to the Brillhart abstention doctrine. Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942). Plaintiffs counter by arguing that Brillhart abstention does not apply to a mixed action for claims brought pursuant to the Declaratory Judgment Act and other independent claims.
This Court finds that Brillhart abstention—which applies to claims brought pursuant to the Declaratory Judgment Act—is in fact inapplicable here. PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674, 679 (5th Cir. 1973) is dispositive on this issue.23 The parties have not provided any legal authority to the contrary nor has the Court independently identified such. Therefore, because other Counts in the Complaint that are not brought pursuant to the Declaratory Judgment Act “each state a claim upon which relief can be granted . . . Brillhart abstention is not applicable to the mixed claims pled here.” Hall, 2018 U.S. Dist. LEXIS 171099, at *15. Therefore, Defendants’ request for abstention under this doctrine will also be denied.
V. CONCLUSION
In accordance with the foregoing, it is ORDERED and ADJUDGED that:
- Defendants’ Motion to Dismiss (Doc. 22) is GRANTED in part and DENIED in part.
- Counts VI and VIII are DISMISSED with prejudice.
- Defendants’ Motion to Dismiss (Doc. 22) is DENIED in all other respects.
DONE and ORDERED in Orlando, Florida on September 30, 2019.
CARLOS E. MENDOZA
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of Record