DAWKINS v. PUBLIX SUPER MARKETS INC (2025)

ORDER

PUBLIX SUPER MARKETS, INC., has for years lived by its motto “Where Shopping is a Pleasure”.¹ And so, each store has a customer service counter that can resolve issues precisely like the one Plaintiff raises. Instead, plaintiff here chose to file a Class Action Complaint. The question before the Court today is whether every issue a customer has with a vendor is worthy of a federal class action lawsuit. For the reasons that follow, the Court answers the question no and dismisses this case.

Plaintiffs’ Amended Class Complaint (DE [17]), alleges a per se violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count I), violation of FDUTPA (Count II), fraudulent misrepresentation (Count III), negligent misrepresentation (Count IV), and unjust enrichment (Count V). (DE [17], ¶¶ 35-71). The Court need not address each of the Complaint's deficiencies as it can be dismissed for various reasons, the most important of which will be discussed below.

The facts in this case are not complicated. And they are largely not controverted. The Court's analysis will be based on the facts as alleged by Plaintiff.

On several occasions, Plaintiff purchased a 24-pack of Swiffer pads for $12.99 at Publix where the unit price was incorrectly listed as $0.4639 per cloth.² Dividing $12.99 by 24, the correct unit price would have been $0.5412 per cloth. (Am. Compl., (DE [17], ¶ 11)). At the same time, Publix sold 12-packs of Swiffer pads for $5.92 each with the correct unit price listed as $0.4933 per cloth. Publix displays the unit price of its products in small print to the right of total price:³

Plaintiff alleges that but for the incorrect unit price on the 24-pack that she would have paid only $11.84 for two 12-packs rather than $12.99 for one 24-pack.⁴

The Court begins with Defendant Publix Super Markets, Inc.’s (“Publix”) Motion to Dismiss Plaintiff's Amended Class Action Complaint (DE [19]) (“Motion”). On January 17, 2025, Publix moved to dismiss. The Motion details numerous pleading deficiencies and is more specifically predicated upon Fed. R. Civ. P. 12(b)(1) and 12(b)(6). On February 18, 2025, Plaintiff filed her Memorandum in Opposition to Defendant's Motion to Dismiss Plaintiff's First Amended Class Action Complaint (DE [22]) (“Response”). On March 12, 2025, Publix filed its Reply in Support of its Motion to Dismiss Plaintiff's Amended Class Action Complaint (DE [25]) (“Reply”). Thus, the Motion is ripe for this Court's review.

I. LEGAL STANDARD

“Although the Constitution does not fully explain what is meant by “[t]he judicial Power of the United States,” Art. III, § 1, it does specify that this power extends only to “Cases” and “Controversies,” Art. III, § 2. And “ ‘[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Spokeo, Inc. v. Robins, 578 U.S. 330, 337, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). The initial threshold question then is whether standing exists to bring a case. To establish standing, a plaintiff must show “(1) an injury in fact; (2) a causal connection between the injury and the alleged misconduct; and (3) a likelihood that the injury will be redressed by a favorable decision.” L.M.P. on behalf of E.P. v. Sch. Bd. of Broward Cty., Fla., 879 F.3d 1274, 1281 (11th Cir. 2018) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “At the pleading stage, the plaintiff must clearly allege facts demonstrating each of these elements.” Gesten v. Burger King Corp., 2017 WL 4326101, at *1 (S.D. Fla. Sept. 27, 2017) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 337, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016)).

Also at the pleading stage, a complaint must contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a) does not require “detailed factual allegations,” it does require “more than labels and conclusions ․ a formulaic recitation of the cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss, “factual allegations must be enough to raise a right to relief above the speculative level” and must be sufficient “to state a claim for relief that is plausible on its face.” Id. at 555, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

In considering a Rule 12(b)(6) motion to dismiss, the court's review is generally “limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002)). Courts must review the complaint in the light most favorable to the plaintiff and must generally accept the plaintiff's well-pleaded facts as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). However, pleadings that “are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

Rule 12(b)(1) applies to challenges of a court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Generally, the plaintiff must allege, with particularity, facts necessary to establish jurisdiction and must support his allegation if challenged to do so. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000).

II. DISCUSSION

“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008) (citing McElmurray v. Consol. Gov't of Augusta–Richmond County, 501 F.3d 1244, 1250, 1251 (11th Cir. 2007)). “ ‘A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.’ ” Id. “By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.” Id. Publix argues that both facially and factually Plaintiff lacked an injury-in-fact.

“An economic injury is the ‘epitome’ of a concrete injury.” Rife v. Newell Brands, 632 F. Supp. 3d 1276, 1291 (S.D. Fla. 2022) (quoting MSPA Claims 1, LLC v. Tenet Fla., Inc., 918 F.3d 1312, 1318 (11th Cir. 2019)). “A person experiences an economic injury when, as a result of a deceptive act or an unfair practice, [s]he is deprived of the benefit of [her] bargain.” Id. (citing Debernardis v. IQ Formulations, 942 F.3d 1076, 1084 (11th Cir. 2019)). “The idea is that such a person has suffered a monetary loss in the value of what she actually paid and what she would have paid if not for the deceptive act.” Id. (emphasis in the original).

First, Publix argues that Plaintiff cannot show that the unit price represented actual value of the Swiffer pads. But, not all of the cases that Publix cites in support of its facial attack are on point.⁵ Drawing support from Ramirez v. Kraft Heinz Foods Company, Publix posits that Plaintiff could not have suffered because she continued to purchase the Swiffer pads, see (DE [19], 5) (citing Ramirez, 684 F. Supp. 3d 1253, 1258-60 (S.D. Fla. 2023)). In Ramirez, the plaintiff alleged that the defendant's single serve cups of mac and cheese were false and misleading because the box said, “READY IN 31/212 MINUTES” and it took longer than 3 1/212 minutes to microwave the cups. Finding Plaintiff lacked standing, Judge Bloom wrote “the ‘complaint “contain[ed] no factual allegations of the price [plaintiff] might have paid if [d]efendant's product was not marketed as ready in three and a half minutes.’ ” (DE [22], 7) (quoting Ramirez, 684 F. Supp. 3d at 1259-60). Here, the Amended Complaint states how much Plaintiff would have paid for the Swiffer pads without the discrepancy in price. (DE [17], ¶ 12) (“Although [Plaintiff] paid $12.99 for 24 Swiffer wipes, the real value of those wipes was $11.84 – the price of two 12-packs”). Publix presents no evidence that Plaintiff continued to purchase the Swiffer pads at the higher unit price after she learned of the discrepancy.

Next citing Green v. PepsiCo, Publix argues that Plaintiff needs to suffer more than economic harm to have an injury-in-fact, but this action is not one involving products liability. See Green v. PepsiCo, 2019 WL 8810364, at *3 (S.D. Fla. Apr. 12, 2019) (“ ‘The wrongs [ ] alleg[ed]—failure to warn and [others]—are products liability claims. Yet, the damages [ ] assert[ed]—benefit of the bargain, out of pocket expenditures—are contract law damages ․ Such artful pleading, however, is not enough to create an injury in fact.’ ”) (citing Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315 (5th Cir. 2002)). Here, “Plaintiff's allegations of damage are not based on product liability, but rather ‘rooted in basic contract law.’ ” (Response (DE [22], 9)); see Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 455, 455 n. 4 (5th Cir. 2001) (“The key distinction between this case and a ‘no-injury’ product liability suit is that the [plaintiff's] claims are rooted in basic contract law rather than the law of product liability ․ The core allegation in a no-injury product liability class action is essentially the same as in a traditional products liability case: the defendant produced or sold a defective product and/or failed to warn of the product's dangers.”). While an economic injury may suffice, the Court need not rule on the merits of Plaintiff's facial attack because its factual attack is dispositive.⁶

Plaintiff argues that Publix's factual attack is improper because damages are an element of her causes of action. In Morrison v. Amway Corporation, the Eleventh Circuit held “that the district court should only rely on Rule 12(b)(1) if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.” Gilberti v. Governor of Fla., 835 F. App'x 508, 511 (11th Cir. 2020) (quoting Morrison, 323 F.3d 920, 925 (11th Cir. 2003)) (quotation marks omitted) (alteration adopted). But “[j]urisdiction becomes intertwined with the merits of a cause of action ‘when a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief.’ ” Id. (citing Morrison, 323 F.3d at 926). Here, Plaintiff brings only state law claims. Thus, the Eleventh Circuit's decision in Morrison, which aimed to promote judicial economy by ordering courts to adjudicate on matters involving federal rights, is inapposite. See Morrison, 323 F.3d at 925 (“Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits.”) (Emphasis added). Finding the factual attack proper, this Court moves on to its analysis.

It would be impossible for Plaintiff to have suffered a concrete injury since she could have (and still can) receive compensation for her alleged loss by invoking one of Publix's money-back guarantees:⁷ Critically, courts in this District have found that no injury-in-fact exists where the defendant offers a money-back guarantee. See, e.g., Perez v. Scotts Co. LLC, 2024 WL 5219736, at *3 (S.D. Fla. Nov. 15, 2024) (“[A] product's offer of a money-back guarantee moots a plaintiff's economic injury claim under FDUTPA and therefore the plaintiff lacks Article III standing”); Hardy v. Bed Bath & Beyond, Inc., 2018 WL 1272687, at *2 (S.D. Fla. Mar. 9, 2018) (“Because, according to her complaint, [plaintiff] could have received a full refund, the only injury she actually alleges was essentially mooted.”); Valiente v. Publix Super Markets, 2023 WL 3620538, at *3 (S.D. Fla. May 24, 2023) (dismissing FDUTPA, negligent and fraudulent misrepresentation, and unjust enrichment claims without leave to amend due to plaintiff's lack of Article III standing). Publix offers shoppers its “Publix Guarantee and Publix Promise.” This Court agrees with its brethren courts and finds that the “Publix Guarantee and Publix Promise” moots any economic injury Plaintiff suffered.

On this point, Plaintiff acknowledges the Publix Guarantee and the Publix Promise. But then in conclusory fashion states that Plaintiff cannot avail herself of the Promise and Guarantee. See (DE [15] ¶¶ 18-20, 22). In essence, Plaintiff is suing a Defendant who offers a full settlement to remedy the situation.⁸ This is not a concrete injury. Valiente, 2023 WL 3620538, at *5. If FDUTPA actually does allow such a claim, it plainly contravenes the language of the Constitution and it is time for the Florida legislature to revisit and rethink the wording of the FDUTPA statute.

If Plaintiff has standing to bring this case, anyone could bring a lawsuit for even the slightest of mistakes. Plaintiff could have easily, and still can, ask Publix to reimburse her for the $1.15 difference in cost between the 24-pack and the 12-pack of Swiffer pads. She has not done so. This Court finds Plaintiff lacks Article III standing and thus dismisses the action.

III. CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED that Publix's Motion to Dismiss Plaintiff's Amended Class Action Complaint (DE [19]) is GRANTED. All causes raised herein by complaint are DISMISSED. The Clerk of Court is directed to CLOSE this case. All pending motions are DENIED AS MOOT.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 14th day of August 2025.

FOOTNOTES

1.   See https://www.google.com/search?client=firefox-b-1-e&channel=entpr&q=publix (accessed 8/12/2025).

2.   Regarding the Swiffer pads that she purchased “countless times” at various stores, see (Am. Compl., (DE [17], ¶¶ 16-17)), Publix argues that Plaintiff fails to plead these allegations with particularity in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. (DE [19], at 2, n. 9). Plaintiff contends that she need not meet this heightened pleading standard. (Response (DE [22], 4)). Recently, the 11th Circuit held that “Rule 9(b)’s particularity requirement applies to FDUTPA claims that sound in fraud.” Pop v. LuliFama.com LLC et al., 145 F.4th 1285, 1292 (11th Cir. 2025). Although this Court ultimately finds that Plaintiff lacks standing, it nevertheless acknowledges that Plaintiff's allegations in paragraphs 16-17 of the Amended Complaint do not satisfy the pleading standards of Rule 9(b).

3.   This tag displays the price and unit price of the 24-pack of Swiffer pads at the time the Defendant filed its Motion. (Motion, (DE [19], 2)).

4.   Why Plaintiff didn't actually do this is interesting. Plaintiff alleges she was “duped” based on the price per cloth. But apparently she was unable to see at quick glance that $5.92 is less than half of $12.99. Perhaps that's more of an issue with the American education system than this case. But common core standards suggest this type of calculation should be mastered in third grade. See https://learning.ccsso.org/wp-content/uploads/2022/11/ADA-Compliant-Math-Standards.pdf Grade 3, p. 22 (last accessed August 12, 2025). This point is relevant to the Court's determination of the plausibility of the claim. In other words, is there a reasonable likelihood of liability? Paragraph 28 of the Amended Class Complaint actually says, “The damage incurred by Plaintiffs, ․ is ․ a matter of common sense.” Common sense (and third grade math) would be knowing that a number under 6.00 can never be doubled to be over 12.00. But the Court need not address the reasonability question either since Plaintiff lacks standing.

5.   This Court acknowledges Judge Martinez's decision in Kukorinis v. Walmart, Inc., 2020 WL 13388297 (S.D. Fla. June 1, 2020); however, that case involved the sale of weighted products, and unit price is central to purchase of weighed products. Unlike a row of 24-packs of Swiffer pads, a shelf of same-sized containers of poultry cost different amounts, determined by finding the product of the weight of each package times the unit price. More importantly, as the Court will explain later, in its motion to dismiss, Walmart never raised the argument that its money back guarantee mooted standing.

6.   This Court declines to discuss the Middle District of Florida's decision in Bechtel v. Winn-Dixie Stores, Inc., 2024 U.S. Dist. LEXIS 198109, *6 (M.D. Fla Oct. 31, 2024) (“Plaintiffs have not alleged actual damages because they do not claim the BOGO products were worth less than they paid.”)

7.   The Eleventh Circuit allows this Court to take judicial notice of these guarantees. See Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008) (“By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.”) (citing McElmurray v. Consol. Gov't of Augusta–Richmond County, 501 F.3d 1244, 1250, 1251 (11th Cir. 2007)).

8.   Common law school examples of the “Publix Promise and Guarantee” include an individual who returned an empty Doritos bag for a full refund, and another who returned a Publix cake with only one piece remaining also for a full refund. Further examples are seen in the similar guarantee and promise offered by Costco which include for full refunds the return of used underwear, a two-year old couch, and long used lighting fixtures.

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE