UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22810-BLOOM/Louis

ILEANA ECHEVARRIA,

Plaintiff,

v.

TACO BELL OF AMERICA, LLC,

Defendant.

______________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant Taco Bell of America, LLC’s

(“Defendant”) Motion to Dismiss Plaintiff’s Amended Complaint, ECF No. [7] (“Motion”).

Plaintiff Ileana Echevarria (“Plaintiff”) filed a Response, ECF No. [19] (“Response”), to which 

Defendant filed a Reply, ECF No. [20]. The Court has considered the Motion, all opposing and 

supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. 

For the reasons set forth below, the Motion is granted.

I. BACKGROUND

Plaintiff initiated this action against Defendant on April 7, 2020, in the Eleventh Judicial 

Circuit in and for Miami-Dade County, Florida, see ECF No. [1-2] (“Complaint”), and ultimately 

filed her Second Amended Complaint on May 12, 2020, id. at 29-37 (“SAC”). The SAC alleges 

that Defendant used food containers that contained 1,3,5-Triphenylcyclohexane (the “Chemical”)

to store food and/or drink, and that this Chemical is an impurity in polystyrene food containers 

that is liberated upon heating and is a residue of packaging migration. Id. at 30, ¶ 8. The SAC 

further states that at all relevant times, Defendant knew or should have known the following: that 

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the polystyrene food containers used contained the Chemical, that the Chemical was a carcinogen, 

mutagen, skin irritant, and was known to be toxic for reproduction. Id. at 31, ¶¶ 11-15. “On or 

about January 14, 2020, the Plaintiff went to TACO BELL . . . where she purchased food to go. 

The food she purchased was stored, at least in part, in a polystyrene food container that contained 

[the Chemical].” Id. at 31, ¶ 16. “Plaintiff became ill each time she came into contact with TACO 

BELL’S polystyrene food containers that were tainted with [the Chemical].” Id. at 31, ¶ 17. Based 

on these allegations, the SAC asserts four counts for relief: Count I – Breach of Implied Warranty 

of Merchantability and Fitness; Count II – Florida’s Deceptive and Unfair Trade Practices Act; 

Count III – Unjust Enrichment; and Count IV – Negligence. See id. at 31-36. 

Defendant now files the instant Motion seeking to dismiss each count of the SAC. While 

Plaintiff concedes that Counts I, II, and III should be dismissed, based upon Defendant’s 

arguments, she nonetheless opposes dismissal of Count IV because she contends that a claim for 

negligence has been adequately alleged. 

II. LEGAL STANDARD

A pleading must contain “a short and plain statement of the claim showing that the pleader 

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual 

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); 

see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading 

standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). 

In the same vein, a complaint may not rest on “‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). 

“Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 

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550 U.S. at 555. These elements are required to survive a motion brought under Rule 12(b)(6) that 

requests dismissal for failure to state a claim upon which relief can be granted.

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the 

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor 

of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 

1076, 1084 (11th Cir. 2002). However, this tenet does not apply to legal conclusions, and courts 

“are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 

U.S. at 555; see also Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 

1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in the 

complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the 

unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 

F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). 

A court, in considering a Rule 12(b)(6) motion, “may consider only the complaint itself 

and any documents referred to in the complaint which are central to the claims.” Wilchombe v. 

TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (citing Brooks v. Blue Cross & Blue Shield 

of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)); see also Maxcess, Inc. v. Lucent Techs., Inc., 

433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the complaint 

may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of 

authenticity.” (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002))).

III. DISCUSSION

In the instant Motion, Defendant now argues that each Count of Plaintiff’s SAC should be 

dismissed. As stated above, Plaintiff concedes that Counts I, II, and III of the SAC should properly 

be dismissed. Thus, Defendant’s Motion is granted as to these three Counts. ECF No. [19] at 2.

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With regard to Count IV, however, Defendant contends that Plaintiff’s claim for negligence 

is vague and conclusory in that it fails to provide any details regarding the food that was purchased, 

the manner of consumption, which packaging Plaintiff came into contact with and how she came 

into contact with the packaging, and how she became ill. In response, Plaintiff maintains that her 

claim of negligence in Count IV is sufficiently alleged because it sets forth all relevant facts to 

establish her claim, and that the Court should therefore deny Defendant’s Motion as it relates to 

Count IV. Plaintiff alternatively requests leave to amend, if this Court determines that the claim 

for negligence is insufficiently pled. 

In addition to the general factual allegations discussed above detailing Plaintiff’s purchase 

of food stored in tainted polystyrene containers and her subsequent illness upon coming into 

contact with the tainted containers, Plaintiff’s SAC sets forth the following allegations to support 

its negligence claim:

45. TACO BELL owed a duty to the Plaintiff to use and exercise reasonable 

and due care in the dissemination of its food products, including the polystyrene 

containers in which the food is placed.

46. TACO BELL owed a duty to the Plaintiff to ensure that the food 

products it sold, including the polystyrene containers in which the food is placed, 

were, and are, unadulterated and free of harmful chemicals.

47. TACO BELL owed a duty of care to the Plaintiff because she is a 

foreseeable, reasonable, and probable consumer of TACO BELL’S food products 

and victim of TACO BELL’S fraudulent and deceptive activities.

48. TACO BELL knew or should have known that the polystyrene food 

containers it used were adulterated.

49. TACO BELL was in the best position to uncover that the polystyrene 

food containers it used were adulterated; however, TACO BELL failed to do so.

50. TACO BELL knew that ignoring the presence of the Chemical in its 

polystyrene food containers would damage the Plaintiff and increase its own 

profits.

51. TACO BELL’S actions and/or inactions created a foreseeable risk of 

harm to the Plaintiff. TACO BELL’S misconduct included, but was not limited to, 

failing to oversee and take action in connection with the dissemination of 

polystyrene food containers containing the Chemical.

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52. TACO BELL breached the duty it owed to the Plaintiff by failing to 

exercise reasonable care sufficient to protect the interests and meet the needs of the 

Plaintiff.

53. As a direct and proximate result of TACO BELL’S[] actions and/or 

omissions, the Plaintiff sustained bodily injury in and about her body and 

extremities with resulting pain and suffering, permanent personal injuries, 

disability, physical impairment, disfigurement, mental anguish, emotional distress, 

inconvenience, loss of capacity for the enjoyment of life, expense of 

hospitalization, medical and nursing care and treatment, and out-of-pocket 

expenses. The losses are either permanent or continuing in nature and the Plaintiff 

has suffered these losses in the past and will continue to suffer these losses in the 

future.

ECF No. [1-2] at 35-36, ¶¶ 45-53.

Upon review of Plaintiff’s negligence claim, the Court agrees with Defendant that the 

allegations in the SAC are inadequate because they are vague and present no meaningful facts 

beyond the bare recitation of the legal elements of a negligence claim. Indeed, the SAC presents 

no facts describing the food purchased or the container the food was packaged in, the way Plaintiff 

came into contact with the allegedly tainted packaging, or how such contact made Plaintiff ill. 

Absent more definite facts, Defendant lacks any meaningful notice of the accusations it faces or 

the ability to properly defend itself against such accusations. See Rubio v. Bridgestone/Firestone 

N. Am. Tire, LLC, No. 10-21248-CIV, 2010 WL 11597600, at *2 (S.D. Fla. June 14, 2010)

(granting motion to dismiss where the complaint presented only vague and conclusory allegations 

of product defects). As currently pled, the SAC presents nothing more than “unadorned, thedefendant-unlawfully-harmed-me accusation[s],” which require dismissal. Iqbal, 556 U.S. at 678; 

see also Twombly, 550 U.S. at 555. Thus, Defendant’s Motion is granted as to Plaintiff’s 

negligence claim. 

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IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion, ECF No. [7], 

is GRANTED. Counts I, II, and III of the SAC are DISMISSED WITH PREJUDICE. Count 

IV is DISMISSED WITHOUT PREJUDICE. By no later than October 14, 2020, Plaintiff may 

amend Count IV of the SAC consistent with this Order.

DONE AND ORDERED in Chambers at Miami, Florida, on September 30, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

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