Fox v. Loews Corp.

Decision Date13 April 2018
Docket NumberCASE NO. 17–24507–CIV–ALTONAGA/Goodman
Citation309 F.Supp.3d 1241
Parties Michael FOX, Plaintiff, v. LOEWS CORPORATION, et al., Defendants.
CourtU.S. District Court — Southern District of Florida

David M. Marco, SmithMarco, PC, Chicago, IL, David A. Searles, James A. Francis, John Soumilas, Francis & Mailman PC, Philadelphia, PA, Edward A. Coleman, Lewis J. Saul, Lewis Saul & Associates, P.C., New York, NY, for Plaintiff.

David A. Coulson, Miami, FL, for Defendants.



THIS CAUSE came before the Court on Defendants, Loews Corporation; Loews Hotels Holding Corporation ("LHHC"); MB Redevelopment, LLC ("MB"); and Loews Miami Beach Hotel Operating Company, Inc.'s ("LMBHOC['s]") Motion to Dismiss Plaintiff's Amended Complaint [ECF No. 34], filed February 23, 2018. Defendants move to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(2) for lack of personal jurisdiction over Loews Corp. and LHHC; Rule 12(b)(1) for lack of Plaintiff's standing; and Rule 12(b)(6) for failure to state claims for relief. (See Mot. 5–6). The Court has carefully considered the Amended Class Action Complaint [ECF No. 28]; the Motion; Plaintiff, Michael Fox's Opposition to Defendants' Motion to Dismiss ("Response") [ECF No. 37]; Defendants' Reply [ECF No. 38]; and applicable law. For the reasons explained below, the Motion is granted in part and denied in part.


Plaintiff brings this consumer class action on behalf of people who purchased food and/or drinks at restaurants or public food service establishments owned or controlled by Defendants in Florida and who were charged a gratuity or service charge in violation of the Florida Deceptive Unfair Trade Practices Act, Section 501.201 et seq. , Florida Statutes. (See Am. Compl. ¶ 1). Defendants allegedly violated Florida law by: unlawfully including an automatic gratuity or service charge in an amount equal to or approximately 18 to 20 percent of the charges for food and beverage without providing statutorily required notice; presenting notice of an automatic gratuity or service charge in small and hard-to-read type; hiding the notice on page one of a multi-page menu; and improperly charging taxes on the gratuity in violation of the Florida Administrative Code. (See id. ).

Plaintiff is a New York resident. (See id. ¶ 5). Loews Corp. owns 100 percent of LHHC. (See id. ¶ 6). LHHC, "through its subsidiaries," owns or controls seven hotel properties in Florida. (Id. ¶ 7). MB is the owner of Loews Miami Beach Hotel. (See id. ¶ 8). LMBHOC operates the Loews Miami Beach Hotel in Miami Beach, Florida. (See id. ¶ 9). Each of the Loews hotels is a public food service establishment or restaurant. (See id. ¶ 11).

Under Section 509.214, Florida Statutes, "[e]very public food service establishment which includes an automatic gratuity or service charge in the price of the meal shall include on the food menu and on the face of the bill provided to the customer notice that an automatic gratuity is included." (Am. Compl. ¶ 13 (alteration added) (quoting Fla. Stat. § 509.214 ) ). The FDUTPA makes it unlawful to engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. (See id. ¶ 14 (quoting Fla. Stat. § 501.204(1) ) ). The Florida Administrative Code regulates how a charge for gratuities may be part of the taxable sales price of food or drinks. (See id. ¶ 15 (quoting Fla. Admin. Code r. 12A–1.0115(7) ) ).

On April 5, 2017, Plaintiff went to the Bar Collins restaurant in the Loews Miami Beach Hotel and ordered food and beverages from the restaurant menu. (See id. ¶¶ 18–19). When he was done eating, Plaintiff was presented with the bill for the meal. (See id. ¶ 20). An automatic 20 percent fee, listed as a "20% SVC CHG," was included with the charges. (Id. ¶ 21 (internal quotation marks omitted) ). The menu did not mention an automatic gratuity or service charge of any amount would be added to the check. (See id. ¶ 22). Below the check total was an extra line for Plaintiff to add a "Tip," which he then did add. (Id. ¶ 23 (internal quotation marks omitted) ). Plaintiff paid the check in full, including the automatic service charge. (See id. ¶ 24).

In somewhat contradictory fashion, Plaintiff later alleges the automatic gratuity or service charge was included on the menu "in small, difficult to read type" (id. ¶ 58(b) ), and was "found on one page of a multi-page menu" (id. ¶ 58(c) ).

On April 6, 2017, Plaintiff dined at the Lure Fishbar restaurant at the Loews Miami Beach Hotel. (See id. ¶ 25). When he was done eating, he was presented a check which included an automatic fee of an undisclosed percentage of the total listed as a "SVC CHR FEE," equal to 20 percent of the subtotal of the food and/or beverage charges on the check. (Id. ¶¶ 26–27 (internal quotation marks omitted) ). The 20 percent service charge amount appears to have been included in the calculation of the charged taxes, although it is unclear how the tax is calculated or whether the fee is a non-taxable gratuity under Rule 12A–0115(7). (See id. ¶ 28). Below the check total was an extra line for Plaintiff to add an "Additional Tip." (Id. ¶ 29 (internal quotation marks omitted) ). There was no mention on the restaurant menu that an automatic gratuity or service charge would be added to the check. (See id. ¶ 30). Plaintiff paid the check in full, including the automatic service charge. (See id. ¶ 31).

Again, the allegation there was no mention of the automatic gratuity or service charge is contradicted in other paragraphs of the Amended Complaint. (See id. ¶¶ 58(b)-(c) ).

Defendants are responsible for the hotel and restaurant operations at the Loews Miami Beach Hotel, and Loews Corp. and LHHC are responsible for the other Loews establishments named in the pleading. (See id. ¶ 32). Plaintiff sues individually and on behalf of a class consisting of all persons who were customers of a Loews hotel restaurant in Florida during the class period and who were billed and paid for food and/or beverages where the bill included an automatic service charge. (See id. ¶ 36).

Plaintiff brings five claims for relief. Each count incorporates all of the prior allegations, including allegations supporting a particular claim for relief. (See Am. Compl. ¶ 46 ("Plaintiff incorporates the paragraphs above as if fully set forth herein."); see also id. ¶¶ 56, 66, 75, 78 (same) ). As such, it is a quintessential shotgun pleading—a defect Defendants pointed out existed in the initial Complaint [ECF No. 1] (see First Motion to Dismiss [ECF No. 15] 6–7), and which they argue in the present Motion is fatal to the Amended Complaint (see Mot. 10–11). Remarkably, despite Defendants having put him on notice of the defect in the initial Complaint, Plaintiff did not cure the defect with his Amended Complaint. Rather, he finds it disingenuous and "hypocritical[ ]" for Defendants to claim they are unable to understand his claims given they managed to prepare a 26–page motion to dismiss. (Resp. 12 (alteration added) ). Shame on Plaintiff for not heeding the Eleventh Circuit's repeated pronouncements criticizing shotgun pleadings like his.

"The typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp. , 305 F.3d 1293, 1295 (11th Cir. 2002). Shotgun pleadings make it "virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll. , 77 F.3d 364, 366 (11th Cir. 1996). Therefore, "shotgun pleadings are routinely condemned by the Eleventh Circuit." Real Estate Mortg. Network, Inc. v. Cadrecha , No. 8:11-cv-474-T-30AEP, 2011 WL 2881928, at *2 (M.D. Fla. July 19, 2011) (citing Pelletier v. Zweifel , 921 F.2d 1465, 1518 (11th Cir. 1991) ); see also Davis v. Coca–Cola Bottling Co. , 516 F.3d 955, 979 n.54 (11th Cir. 2008) ("[S]ince 1985 we have explicitly condemned shotgun pleadings upward of fifty times." (alteration added) ); Strategic Income Fund , 305 F.3d at 1295 n.9 ("This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay." (citations omitted) ); Byrne v. Nezhat , 261 F.3d 1075, 1131 (11th Cir. 2001) ("Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice."). Consequently, and preliminarily, the Amended Complaint is defective and must be dismissed.

Nevertheless, the Court addresses the Amended Complaint's five claims and the parties' arguments in order to give Plaintiff direction on how to proceed with a final, amended pleading, while recognizing the deadline to amend pleadings has passed. (See Order Setting Trial [ECF No. 26] 1).

Count I, titled, "Per Se Violations of the Florida [Deceptive and Unfair] Trade Practices Act" (Am. Compl. 10 (alteration added) ), alleges Defendants' failure to provide the statutorily required notice of an automatic gratuity or service charge constitutes a per se violation of the FDUTPA. (See id. 10–12). Count II is titled "Violations of the Florida [Deceptive and Unfair] Trade Practices Act" (id. 12 (alteration added) ), and it alleges Loews's acts and practices are unconscionable, unfair, and deceptive. (See id. 12–15). Count III alleges "Violations of Rule 12A–1.0115 of the Florida Administrative Code." (Id. 15–17). Count IV is titled "Declaratory Judgment," and Count V is titled "Injunctive Relief." (Id. 17).

Defendants seek dismissal of the Amended Complaint with prejudice. (See Mot. 19).

A. Personal Jurisdiction Over Loews Corp. and LHHC

Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a claim against it...

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