ORDER
THIS CAUSE came before the Court upon Plaintiffs’ Motion for Class Certification [D.E. 53],
THE COURT has considered the Motion, the pertinent portions of the record, and is otherwise fully advised in the premises.
I. INTRODUCTION
This matter was initiated when Plaintiffs Pop’s Pancakes, Inc., “Pop’s”, and Zuccarelli’s Italian Restaurant, “Zuccarelli’s”, filed a three Count Class Action Complaint against the Defendant NuC02, Inc., “NUCO” alleging violations of Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201, et seq., (“FDUTPA”), Breach of Contract and Unjust Enrichment [D.E. 1], Generally, Plaintiffs, who are restaurant establishments, allege that the Defendant, a provider of beverage bulk C02 equipment, entered into leasing agreements with the Plaintiffs and other class members for the use of certain beverage equipment. According to Plaintiffs, during the leasing periods, the Defendant issued property tax invoices to the Plaintiffs, which allegedly unbeknownst to the Plaintiffs and other class members, included an “administrative processing fee” which was retained by the Defendants. Plaintiffs maintain that the inclusion of the fee on the property tax invoice was a violation of FDUTPA as the Defendant failed to disclose the fee, deceptively placed the fee on the invoice, misrepresented that the full amount of the property tax invoice was to be paid to a governmental agency as a “pass-through fee”, and charged an unnecessary and excessive amount for the processing fee. The Plaintiffs also allege that the Defendant breached the leasing agreements with the Plaintiffs and other class members by improperly including the fee on the property tax invoices and, in addition, allege that the Defendant was unjustly enriched by charging the “false” fees.
Defendant maintains that the property tax invoices that Plaintiffs assert were deceptive, contain an explanatory table on the back of the invoice which defines the “property tax” charge as, “[a]n annual fee on bulk C02 equipment levied by states that assess personal property taxes together with an administrative processing fee.” See [D.E. 62],
In the instant Motion, Plaintiffs seek to have this action certified as a class action. [D.E. 52]. The Plaintiffs have alleged that class certification is appropriate as the Plaintiffs satisfy the requirements of Fed.R.Civ.Pro. 23(a) and of Fed.R.Civ.Pro. 23(b)(3).
Defendant has filed an Opposition to the Plaintiffs’ Motion to Certify Class asserting that Plaintiffs have failed to meet the requirements for class certification under the applicable Federal Rules [D.E. 62] and Plaintiff has filed a Reply to Defendant’s Opposition [D.E. 65].
II. LAW & DISCUSSION
A. Plaintiffs’ Proposed Class
Before reaching the issue of whether the Plaintiffs have met the class certification requirements, the Court first notes that Plaintiffs have proposed that this matter be certi
FDUTPA Class
All persons and/or entities in the United States, who leased equipment from NuC02 pursuant to either the Standard Bulk C02 Budget Plan Agreement or Standard Equipment Lease Plan Agreement, during the period of May 21, 2003 thru the date of certification, and who were assessed the full administrative processing fee of $14.00, $25, or $27.50 in any invoice. Excluded from the class are the following:(l) NUC02 as well as it agents, parents, subsidiaries and affiliates.
Breach of Contract Class
All persons and/or entities in the United States, who leased equipment from NUC02 pursuant to either the Standard Bulk C02 Budget Plan Agreement or Standard Equipment Lease Plan Agreement, during the period of May 21, 2002 thru the date of certification, and who were assessed the full administrative processing fee of $14.00, $25, or $27.50 in any invoice. Excluded from the class are the following:(l)NUC02 as well as it agents, parents, subsidiaries and affiliates.
Unjust Enrichment Class (plead in alternative to Breach of Contract Class).
All persons and/or entities in the United States, who leased equipment from NUC02 pursuant to either the Standard Bulk C02 Budget Plan Agreement or Standard Equipment Lease Plan Agreement, during the period of May 21, 2003 thru the date of certification, and who were assessed the full administrative processing fee of $14.00, $25, or $27.50 in any invoice. Excluded from the class are the following: (1) NUC02 as well as it agents, parents, subsidiaries and affiliates.
The Court questions whether the proposed class definitions sufficiently identify proper potential class members, as the definitions are overly broad because they include all entities that leased equipment and paid a full administrative fee. Thus, even if said fee was disclosed, part of the negotiated lease agreement, or was otherwise agreed to by the customers, the class would still improperly include those customers. See, e.g. O’Neill v. Home Depot,
B. Rule 23. Class Actions
Federal Rule of Civil Procedure 23(a), which governs class actions in federal court provides, in relevant part,
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
*681 (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23. These four requirements are commonly referred to as the numerosity, commonality, typicality and adequacy factors and are designed to effectively limit class claims to those fairly encompassed by the named plaintiffs’ individual claims. PradoSteiman ex rel. Prado v. Bush,
In addition, Rule 23(b) provides, inter alia, (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3).
Thus, pursuant to Rule 23, “[a] class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b).” Jackson v. Motel 6 Multipurpose, Inc.,
Before evaluating whether the Plaintiffs have satisfied the Rule 23 standards for class certification, the Court notes that its inquiry-is not limited to the face of the Plaintiffs’ Complaint or Motion for Class Certification. Rather, as stated by the Eleventh Circuit, “[wjhile it is true that a trial court may not properly reach the merits of a claim when determining whether class certification is warranted, this principle should not be talismanieally invoked to artificially limit a trial court’s examination of the factors necessary to a reasoned determination of whether a plaintiff has met her burden of establishing each of the Rule 23 class action requirements.” Love v. Turlington,
1. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” While Rule 23 does not specify an exact number necessary to satisfy numerosity, the Eleventh Circuit has indicated that less than twenty-one plaintiffs is inadequate, and more than forty class plaintiffs is generally enough to satisfy the rule. See Cox v. Amer. Cast Iron Pipe Co.,
In this case, Plaintiffs assert that numerosity is met as the Defendant’s documents reveal that over 56,000 customers are assessed personal property taxes and are charged the
2. Commonality
Rule 23(a)(2) also requires that “there are questions of law or fact common to the class.” Traditionally, commonality refers to the group characteristics of the class as a whole. Prado-Steiman ex rel. Prado v. Bush,
Plaintiffs assert that the commonality requirement is easily met in this case, and in their Motion set forth the following as examples of questions of law and fact common to the class:
a. Whether NUC02’s failure to disclose to Class Members that the administrative processing fee was not a direct pass through of Defendant’s actual cost, is a violation of FDUTPA;
b. Whether NuC02’s property tax invoice is deceptive by failing to separately itemize and disclose the administrative processing fee;
c. Whether NUC02 concealed the administrative processing fee by disguising it as a tax;
d. Whether NUC02 improperly represents the administrative processing fee as a pass-through charge;
e. Whether NuC02’s definition of “PROPERTY TAX” on the back of the invoice is deceptive;
f. Whether the invoice is deceptive pursuant to FDUTPA;
g. Whether there is a profit component to the administrative processing fee;
h. Whether the Plaintiff and the Class are “consumers” under Fla. Stat. § 501.203(7);
i. Whether NUC02 was unjustly enriched to the detriment of Plaintiff and the Class;
j. Whether NUC02’s practice of charging the administrative processing fee violates the standard Budget Plan and ELPP agreements.
See [D.E. 53 at 8]. Further, Plaintiffs assert that the commonality requirement is met as the Defendant engaged in common conduct towards the class by sending identical, and allegedly deceptive, property tax invoices to the Plaintiffs. Defendant counters that Plaintiffs’ allegations fail to satisfy the requirement for commonality for class certification purposes because Defendant’s alleged standardized conduct of sending property tax invoices to the Plaintiffs occurred under varying circumstances and under different contracts.
After reviewing the evidence submitted in this matter, the Court finds that the potential Plaintiffs do not meet the commonality threshold. More specifically, Gary Geyser, a salesman for NUCO for over nine years, was deposed and stated that he was taught to explain anything in the agreements to the customers they “sat down with” and that he explains the charges that he is aware of to every customer, including the administrative fee on the property tax [D.E. 65-3 at 61].
In addition, Randy Gold, the corporate representative from NUCO was deposed and stated that NUCO has approximately thirty (30) sales people [D.E. 53-2 at 13], and that the sales representatives are ordered to disclose the administrative processing fees to the customers [D.E. 65-4 at 142]. He also
Thus, Plaintiffs’ proposed class definition of “All persons ... who leased equipment from NUCO2 pursuant to either the Standard Bulk C02 Budget Plan Agreement of Standard Equipment Lease plan Agreement ... and who were assessed the full administrative processing fee of $14.00, $25, or $27.50 in any invoice” fails to state a common cause of action for each class plaintiff for deceptive practices or breach of contract by the Defendant, as the circumstances regarding the disclosure and assessment of the full administrative processing fee could vary greatly. In this regard, the Plaintiffs’ proposed class is much like the class in O’Neill v. The Home Depot U.S.A., Inc.,
3. Typicality
Closely related to the element of commonality is the third prerequisite for class certification that the representative plaintiffs claims “are typical of the claims ... of the class” Fed.R.Civ.P. 23(a)(3). The focus of typicality is whether the class representative’s interest is aligned enough with the proposed class members to stand in their shoes for purposes of the litigation and bind them in a judgment on the merits. General Tel. Co. v. Falcon,
In this matter, for the reasons discussed above, the Court does not find that the named Plaintiffs’ claims are typical of the potential class members. In particular, both named Plaintiffs have claims that may be atypical of the class to the extent that the representations made to them before receiving the property tax invoice, and after receiving the invoice are different from other class members, and thus the fact that one of the named Plaintiffs may be able to prove its case, would not necessarily establish the elements necessary to prove the other class members’ cases, specifically whether the property invoice was deceptive. Thus, the typicality requirement is not met.
4. Named Plaintiff's as Adequate Class Representatives
The fourth element of the Rule 23(a) analysis requires that the “representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This requirement “involves questions [1] of whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation, and [2] of whether plaintiffs have interests antagonistic to those of the rest of the class.” Griffin v. Carlin, 755
As with numerosity, Defendant does not seriously challenge the Plaintiffs as adequate class representatives and this Court finds that the Plaintiffs are adequate representatives as their counsel are qualified and the Plaintiffs’ interests are not antagonistic to those of the rest of the class.
C. Common Legal and Factual Issues under Rule 23(b)(3)
Although the Court has determined that the Plaintiffs fail to meet the commonality and typicality requirements under Rule 23(a), the Court further finds that the Plaintiffs also fail to satisfy the requirements under Rule 23(b). In their Motion for Certification, Plaintiffs have asserted that the elements of Rule 23(b)(3) are met as common legal and factual issues predominate this matter. Defendant argues in response that Plaintiffs are unable to satisfy the requirements as, after any class wide issues are resolved, the class plaintiffs would still be required to present a great deal of individualized proof in order to prevail on them individual claims.
For the following reasons, the Court agrees with the Defendants. First, while under Rule 23(b)(3), “[i]t is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions,” Klay v. Humana, Inc.,
Thus, “[cjommon issues of fact and law” predominate if they “ha[ve] a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.” Klay v. Humana,
In determining whether class or individual issues predominate in a putative class action suit, courts must take into account “the claims, defenses, relevant facts, and applicable substantive law,” and to assess the degree to which resolution of the classwide issues will further each individual class member’s claim against the defendant. In so doing, “courts examine the causes of action asserted in the complaint on behalf of the putative class.” Id. at 1254. Finally, whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member’s underlying cause of action. Id. at 1255.(citing Rutstein v. Avis Renh-A-Car Sys.,
The Plaintiffs maintain that the predominance element is satisfied as the elements of Plaintiffs’ FDUTPA claim are subject to common proof. More specifically, Plaintiffs state that the Defendant is guilty of three FDUTPA violations by, 1) “... craft[ing] the invoice with the effect of deceiving the Plaintiff and the Class into believing the Property Tax identified in the property tax invoice was the true assessed tax rate and/or was entirely a pass-through charge remitted to the proper governmental entity”; 2) failing to adequately disclose the administrative fee; and, 3) failing to disclose to customers the large profit component to the administrative fee. See [D.E. 53 at 12]. Further, Plaintiffs
However, under FDUTPA, a litigant must demonstrate three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. Rollins, Inc. v. Butland,
As to the Plaintiffs’ third contention that the Defendant violated FDUTPA by failing to disclose to customers the large profit component to the administrative fee, again, whether the fee and/or any profit component of the fee was disclosed, either prior to issuance of the invoice or prior to payment of the invoice, would depend on an individual inquiry into each plaintiffs interaction with NUCO.
In this regard this case is very similar to O’Neill v. The Home Depot U.S.A., Inc.,
Plaintiffs attempt to distinguish this case from O’Neill v. Home Depot, by asserting that this matter does not involve an inquiry into each individual plaintiffs involvement with an employee of NUCO, but rather involves the uniform property tax invoice is
Even a cursory examination of the common questions of law and fact set forth by the Plaintiffs in their Motion, demonstrates the need for individual inquiry of each class member. See, discussion of common questions of fact, supra, at p. 682. See also, [D.E. 53 at 8-9]. Specifically, three of the common questions that Plaintiffs set forth require a finding that the Defendant either failed to disclose the administrative processing fee or concealed the processing fee. Another question requires a finding of whether the Defendant misrepresents the processing fee as a pass-through charge, and two other questions require a finding that the invoice is deceptive, which necessarily would require inquiry into whether a plaintiff read the back of the invoice and, if so, whether the plaintiff understood the property tax invoice.
To avoid this conclusion, the Plaintiffs rely heavily on Latman v. Costa Cruise Lines, N.V.,
In this case, unlike Latman, the question of what is reasonable, particularly in light of the consumers being business entities, is predicated in large part, on what was understood by the customers when they read the property tax invoice, including consideration of what had been to be represented to them, or what their understanding was through their own reading of the back of the invoice. Thus, it is not the Plaintiffs’ reliance that is at issue, but whether it was reasonable under the circumstances, which vary for each Plaintiff, for each Plaintiff to not know that the property tax included an administrative processing fee. Id.
In Agan v. Katzman & Korr,
Plaintiffs further point to Davis v. Powertel Inc.,
Finally, most recently in Egwuatu v. South Lubes, Inc.,
Moreover, the Court finds this case distinguishable from other eases involving consumer fraud given the nature of the interaction between the potential plaintiffs and the Defendant. In many of the cases cited by the Plaintiffs, the consumers had a one-time purchase or interaction with the defendant business and thus, there were no additional issues regarding other representations or negotiations between the consumer and that business. Therefore, in those situations, the deceptive nature of the receipt, invoice or ticket could be determined without inquiry into the knowledge of the consumer based upon other representations that might have eliminated any confusing and/or deceptive aspects of the receipt, invoice or ticket. In this matter, the property tax invoice does not reveal the entirety of the transaction between the Parties related to the property invoice. Rather, the lease agreements, the oral representations, the verbage on the back of the invoice, and any other interaction that the business may have had with the consumer must be considered to resolve whether the property tax invoice was deceptive.
As to Plaintiffs’ claims for breach of contract and unjust enrichment, Plaintiffs assert that the claims of the class may be proven by similar proof. However, for the breach of contract claim, the lease agreements which are the source of the Plaintiffs’ breach of contract claim may vary from customer to customer. In fact, the two Plaintiffs named herein, Pop’s Pancakes and Zucarelli’s, both have different terms in their contracts, and, as mentioned previously, the Defendant apparently uses a different contract for some Budget Plan customers that states that an administrative fee is included in the property tax. See, [D.E. 65-5]. See also, [D.E. 62-3]. Thus, again an individual inquiry would necessarily have to be conducted to determine whether a breach of contract had occurred based upon each contract.
Plaintiffs finally assert that NuCO was unjustly enriched by “raking” in millions of dollars from the implementation of the administrative fee that “1) was represented to be a pass-through charge to be remitted to the government; 2) was not adequately disclosed; and/or 3) bears no rational relation to either Defendant’s cost of processing the personal property taxes or the actual assessed property tax rate.” [D.E. 53 at 19]. Again the resolution of these issues, much like those raised under Plaintiffs’ FDUTPA claims require individual inquiry as to the disclosure of the fee, the representations made about the fee, and the amount of the individual administrative fee and property tax assessment of each class member. As such, the Plaintiffs’s claims of unjust enrichment do not satisfy the requirements of Rule 23.
Thus, based on the foregoing analysis, that Plaintiffs have failed to satisfy the requirements of Fed.R.Civ.P. 23, and therefore this action is not appropriate for class certification.
Having determined that this matter is inappropriate for class certification, the Court must now examine the claims of the individual Plaintiffs, Pop’s Pancakes and Zucarrelli’s Italian Restaurant.
Federal courts have limited subject matter jurisdiction, or in other words, they have the power to decide only certain types of cases. Beavers v. A.O. Smith Elec. Products Co.,
Plaintiffs herein filed this action asserting that this Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1332(d) as the controversy exceeds $5 million and the putative class includes more than 100 members. However, section d of 28 U.S.C. § 1332, applies only to class actions. See, 28 U.S.C.A. § 1332(d)(2). In particular, 28 U.S.C.A. § 1332(d)(2) grants the district court original jurisdiction over any civil action which the matter in controversy exceeds the sum or value of $5,000,000.00 and is a class action. Thus, given that the Court has declined to certify the class in this action, jurisdiction of this action may not be predicated upon 28 U.S.C.A. § 1332(d)(2).
Accordingly, given that the Plaintiffs’ claims arise under FDUTPA, and common law claims of breach of contract and unjust enrichment, rather than, federal statutory or constitutional claims, the only source of this Court’s jurisdiction is diversity of citizenship pursuant to 28 U.S.C.A. § 1332(a). However, it is clear, that the Plaintiffs’ claims fail to meet either the monetary threshold or the complete diversity requirement of this provision. Specifically, in the Complaint, the Plaintiffs allege that the Defendant deceptively added a $25.00 fee to quarterly tax invoices and assert that NuCO’s policy and practice of charging customers falsely inflated tax charges has dramatically increased NuCO’s profits, with NuCO improperly pocketing at least $100.00 in profit per lease-equipment customer, per year. [D.E. 1 at 7]. Thus, Plaintiffs, in essence, assert that each potential plaintiff incurred a fee of $100.00 per lease per year. Therefore, in order for each Plaintiff to individually satisfy the $75,000 threshold required for diversity jurisdiction, each Plaintiff would have had to maintain leases far in excess of those alleged to be held by the Plaintiffs herein. In addition, Zuccarelli’s Italian Kitchen is based in Palm Beach, Florida, according to the Complaint, and thus does not have complete diversity with the Defendant. Plaintiffs therefore are unable to establish diversity jurisdiction. Thus, the Court lacks subject matter jurisdiction over this matter and it must therefore be dismissed.
III. CONCLUSION
Accordingly, it is
ORDERED AND ADJUDGED that Plaintiffs’ Motion for Class Certification [D.E. 53] is DENIED. It is further
ORDERED AND ADJUDGED that this matter is dismissed for lack of subject matter jurisdiction. It is further
ORDERED AND ADJUDGED that all pending motions are DENIED as moot.
DONE AND ORDERED.
Notes
. The Court is aware that in the Complaint, the class identified differed from the proposed class definitions contained in the Plaintiffs' Motion for Class Certification currently before the Court. As the Plaintiffs have not sought to have class certification on the class as set forth in the Complaint, the Court limits its analysis to those class definitions contained in Plaintiffs' Motion to Certify Class [D.E. 53].