Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—M.D. Fla.: Yacht manufacturer fails to sink dealer’s deceptive acts claim, (Dec 19, 2014)

By Greg Hammond, J.D.

An out-of-state yacht dealer could carry on with its Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim against a manufacturer of pleasure sailing vessels. The federal district court in Tampa rejected the manufacturer’s motion to dismiss, finding that the dealer’s FDUTPA claim could be pleaded in the alternative (Clipper Marine, Ltd. v. Marlow-Hunter, LLC, December 16, 2014, Covington, V.).

After yacht broker Clipper Marine, Ltd. purchased a Legend 40’ sailing yacht manufactured and warranted by Marlow-Hunter, LLC, Clipper found the vessel to be unseaworthy and unfit for resale. Marlow allegedly refused to correct the defects or accept a return of the vessel, and Clipper filed suit, alleging—in part—a violation of the FDUTPA. Marlow moved to dismiss the FDUTPA claim, arguing: (1) Clipper’s FDUTPA allegations are a recasting of breach of express and implied warranty claims; (2) Clipper failed to allege a significant deception or malice; and (3) Clipper is not an in-state consumer.

The court disagreed with Marlow’s arguments, first determining that even though the FDUTPA claim sets forth similar allegations to Clipper’s breach of warranty claims, there is no reason why Clipper should not be allowed to plead the FDUTPA claim in the alternative. Second, the court found that the issue of whether there was a deceptive act or unfair practice would require the court to look outside the four corners of the complaint, which would be better suited for the summary judgment stage. Finally, the court found that there was nothing on the face of the FDUTPA statute that would preclude its applicability to Clipper simply because it may have purchased the vessel outside of Florida. The motion to dismiss was therefore rejected.

Alternatively, Marlow argued that Clipper should be required to post bond on its FDUTPA claim, arguing that the claim is devoid of legal or factual merit, and was brought for the purpose of harassment. The court rejected this argument, however, finding that it was not apparent that the FDUTPA claim lacks merit and was asserted for the sole purpose to harass Marlow. Rather, the court found that Clipper alleged the FDUTPA claim as an alternative theory of recovery.

The case number is 8:14-cv-1559-T-33TGW.

Attorneys: Jonathan W. Skipp (Horr, Novak & Skipp, PA) for Clipper Marine, Ltd. Brian L. Trimyer (Harllee & Bald, PA) for Marlow-Hunter, LLC.

Companies: Clipper Marine, Ltd.; Marlow-Hunter, LLC

Cases: StateUnfairTradePractices FloridaNews