United States District Court 

for the 

Southern District of Florida 

Heriberto Valiente, individually and 

on behalf of all others similarly 

situated, Plaintiff, 

v. 

Publix Super Markets, Inc., 

Defendant. 

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Civil Action No. 22-22930-Civ-Scola 

Order on Motion to Dismiss 

This matter is before the Court on the Defendant Publix Super Markets, 

Inc.’s (“Publix”) motion to dismiss the Plaintiff Heriberto Valiente’s (“Valiente”) 

amended class action complaint. (ECF No. 11.) Valiente has filed a response in 

opposition to Publix’s motion (ECF No. 14), to which Publix has replied (ECF 

No. 15). Having reviewed the record, the parties’ briefs, and the relevant legal 

authorities, the Court grants Publix’s motion. (Mot., ECF No. 11.) 

1. Background 

This action arises from Valiente’s dissatisfaction with Publix’s honeylemon cough drops. As set forth in Valiente’s complaint,1 Publix manufactures, 

markets, and sells the following honey-lemon, menthol-based lozenges: 

(Am. Compl. ¶ 1, ECF No. 9.) “[O]n June 4, 2022, among other times[,]” 

Valiente purchased the cough drops, apparently attracted by the phrase 

1 This background is based on the allegations in Valiente’s complaint. 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 1 of 10
“honey-lemon,” the “pictures of these ingredients,” and the statement “soothes 

sore throat[s].” (Id. ¶¶ 64–65.) From these representations, Valiente “believed”

that the product “contained a non-negligible amount of lemon ingredients,” and 

“expected” that the product’s “soothing ability was due to its effect on bronchial 

passages.” (Id. ¶¶ 67–70.) Valiente acknowledges that the product’s “front label 

discloses [its] active ingredient through the statement, ‘Menthol Cough 

Suppressant/Oral Anesthetic,’” and notes that the product’s “ingredient list . . . 

does not list any lemon ingredient.” (Id. ¶¶ 14, 16.) However, he posits that the 

product’s labeling is nonetheless misleading to consumers like himself in two 

separate ways: i.e., by suggesting (i) that it contains “a non-de minimis amount 

of lemon ingredients,” and (ii) that it is capable of “sooth[ing] bronchial 

passages[.]” (See id. ¶¶ 15, 20, 22, 78.)

Valiente asserts that he and his proposed class of customers have been 

damaged because, had they “known the truth, they would not have bought the

[p]roduct or would have paid less for it.” (Id. ¶¶ 30–31.) Specifically, he 

maintains that the label’s “false and misleading representations” allow Publix 

to sell the product at the “premium price” of “no less than $1.79 per 30 

lozenges,” which is “higher than it would be sold for absent the misleading 

representations and omissions.” (Id. ¶¶ 29, 32.) Notwithstanding this, Valiente 

“intends to, seeks to, and will purchase the [p]roduct again[,]” once he is 

“assur[ed] [that] the [p]roduct’s representations are consistent with its abilities, 

attributes, and/or composition.” (Id. ¶ 77.)

Based on these allegations, Valientes seeks both damages and injunctive 

relief, bringing six claims against Publix: violation of Florida’s Deceptive and 

Unfair Trade Practices Act; violation of the consumer fraud acts of the states 

encompassed by the proposed multi-state class (i.e., Alabama, Georgia, North 

Carolina, South Carolina, Tennessee, and Virginia); breaches of express 

warranty, implied warranty of merchantability, and the Magnuson Moss 

Warranty Act; negligent misrepresentation; fraud; and unjust enrichment. (Id. 

¶¶ 88–124.) In response, Publix moves to dismiss Valiente’s amended 

complaint on several grounds: lack of Article III standing; preemption; and 

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Mot., 

ECF No. 11.) 

As explained below, the Court grants Publix’s motion and dismisses the 

complaint because it finds that Valiente has failed to establish Article III

standing. Because the Court finds that Valiente lacks standing, it declines to 

address Publix’s additional arguments regarding preemption and Valiente’s 

failure to state a claim for each cause of action.

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 2 of 10
2. Legal Standard 

Because the question of Article III standing implicates subject matter 

jurisdiction, it must be addressed as a threshold matter prior to the merits of 

any underlying claims. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., 

P.A., 781 F.3d 1245, 1250 (11th Cir. 2015). Article III of the Constitution 

grants federal courts judicial power to decide only actual “Cases” and 

“Controversies.” U.S. Const. Art. III § 2. The doctrine of standing is a “core 

component” of this fundamental limitation that “determin[es] the power of the 

court to entertain the suit.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of 

Fla., 641 F.3d 1259, 1264-65 (11th Cir. 2011) (quoting Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Warth 

v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). “In the 

absence of standing, a court is not free to opine in an advisory capacity about 

the merits of a plaintiff’s claims, and the court is powerless to continue.” Id.

(citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th 

Cir. 2006)).

Standing under Article III consists of three elements: the plaintiff must 

have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged 

conduct of the defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S. Ct. 1540, 

1547, 194 L. Ed. 2d 635 (2016). To establish the first element, “a plaintiff must 

show that he or she suffered an invasion of a legally protected interest that is 

concrete and particularized and actual or imminent, not conjectural or 

hypothetical.” Id. at 1548.

3. Discussion 

Publix argues that Valiente lacks standing to pursue either damages or 

injunctive relief. Because “standing is not dispensed in gross[,]” and “plaintiffs 

must demonstrate standing for each claim that they press and for each form of 

relief that they seek (for example, injunctive relief and damages)[,]” the Court 

addresses each point in turn. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 

2208, 210 L. Ed. 2d 568 (2021). 

A. Article III Standing for Monetary Damages 

First, Publix attacks the sufficiency of Valiente’s allegations as to the first 

element of Article III standing, arguing that he fails to allege facts

demonstrating he suffered any injury-in-fact. (Mot. 4–5, ECF No. 11.) Even 

though Valiente attempts to allege an economic injury, Publix argues, he fails 

to set forth facts to make plausible his conclusion that the cough drops were 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 3 of 10
worth less than what he paid due to Publix’s allegedly-misleading packaging. 

And, Publix notes, Valiente specifically fails to explain why he has incurred an 

actual economic injury-in-fact in light of Publix’s unconditional money-back 

guarantee. (Id. at 5 n.4.) In his response, Valiente argues that he has 

sufficiently established an injury by alleging that he paid a price premium for 

the product due to the misleading labeling, which is all he was required to 

plead. (Resp. 7–8, ECF No. 14.) The Court does not agree. 

To begin, Valiente’s response completely ignores Publix’s point as to how 

he could have incurred an actual economic injury in light of the company’s 

money-back guarantee. Critically, this Court has previously found that a 

customer lacked Article III standing to sue a retailer based on an allegedly 

misrepresented product where the company, like Publix, had provided the 

customer with an unconditional money-back guarantee. See Hardy v. Bed Bath 

& Beyond, Inc., Civil Action No. 17-22315-Civ, 2018 U.S. Dist. LEXIS 38948 

(S.D. Fla. Mar. 9, 2018) (Scola, J.). In Hardy, the plaintiff alleged that she had 

purchased pillowcases from the defendant, Bed Bath & Beyond, Inc., that were 

represented to contain 100 percent pima cotton, but in fact contained only 2 

percent pima cotton. Id. at *3. In addition, much like Valiente here, she 

contended that she suffered damages as a result of the misrepresentation 

because “she did not receive the premium product she thought she was 

purchasing[,] but instead received something of inferior quality and therefore 

did not obtain the benefit of her bargain.” Id. The plaintiff, however, had also 

attached to her complaint billing documentation associated with her purchase, 

which indicated that the defendant offered a full refund, with no restrictions, to 

unsatisfied customers. Id. at *4. In concluding that the plaintiff had not 

cognizably alleged an injury-in-act, this Court explained that the only injury 

the plaintiff alleged “was essentially mooted” by the fact that she could have 

received a full refund for her purchase. Id. at *5. 

Like the defendant in Hardy, Publix offers customers a full refund for 

items with which they’re unsatisfied, no questions asked. Although Valiente’s 

amended complaint only provides portions of the label for the honey-lemon 

cough drops, Publix’s motion provides an image of the full package. The 

guarantee, which is clearly printed on the back, states: “PUBLIX GUARANTEE: 

COMPLETE SATISFACTION OR YOUR MONEY BACK.” (Mot. 1, ECF No. 11.)2

2 The guarantee is also available on Publix’s website. See Publix Policies / Publix Guarantee,

https://www.publix.com/pages/policies/publix-guarantee (last accessed May 22, 2023) (“We 

will never knowingly disappoint you. If for any reason your purchase does not give you 

complete satisfaction, the full purchase price will be cheerfully refunded immediately upon 

request.”). Moreover, “[b]ecause the Court’s authority to hear the case is at issue in a Rule 

12(b)(1) motion, the Court is free to weigh evidence outside the complaint.” Yachera v. 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 4 of 10
Valiente does not address Publix’s offer either in his amended complaint or in 

his response to Publix’s motion to dismiss: for example, he does not state that 

he never in fact received a refund for the cough drops, that he attempted to 

return the product for a refund and that Publix refused, or even that he was 

unaware of the possibility for a refund. Accordingly, as in Hardy, the Court 

concludes that the only injury Valiente actually alleges has essentially been 

mooted by Publix’s money-back guarantee. Id. at *6; see also Barnett v. Fitness 

Int’l, LLC, No. 20-60658-CIV-DIMITROULEAS, 2020 U.S. Dist. LEXIS 171460, 

at *13 (S.D. Fla. Sep. 17, 2020) (Dimitrouleas, J.) (The plaintiff “lack[ed] Article 

III standing because his alleged injury - the failure to refund his March 2020 

membership fees, was fully redressed by [the defendant’s] unconditional, direct 

refund of his March 2020 membership fees on April 27, 2020, prior to [the 

plaintiff] filing suit on April 29, 2020.”). 

Moreover, putting aside the fact that Valiente could receive (or, 

potentially, has received) a full refund from Publix for his purchases of the 

cough drops, the Court still concludes that Valiente fails to plausibly allege “an 

invasion of a legally protected interest that is concrete and particularized and 

actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 

578 U.S. 330, 338, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016). Valiente 

does not assert that Publix’s honey-lemon cough drops caused him any sort of

harm other than the economic loss allegedly resulting from the product’s 

misleading advertisements. In other words, Valiente’s only alleged injury is 

based on the claim that “[h]ad [he] and proposed class members known the 

truth, they would not have bought the [p]roduct or would have paid less for it.”

(Am. Compl. ¶ 1, ECF No. 9.) In his response to Publix’s motion to dismiss, 

Valiente argues that this “price premium” theory is all he is required to plead to 

sufficiently allege an injury-in-fact. (Resp. 8, ECF No. 14.) Other than Valiente’s 

conclusory allegations to the effect that the cough drops are being sold at a 

premium price, however, the complaint is devoid of any factual support for the 

idea that they are, in fact, worth less than the stated price of “$1.79.” (Am. 

Compl. ¶ 32, ECF No. 9.) And the Court does not agree that Valiente’s mere 

allegation of having paid a price premium due to the purportedly misleading 

labeling suffices to allege an injury-in-fact. 

An economic injury is generally considered “the epitome of ‘concrete’” for 

purposes of Article III standing. MSPA Claims 1, LLC v. Tenet Fla., Inc., 918 

F.3d 1312, 1318 (11th Cir. 2019) (citing Craig v. Boren, 429 U.S. 190, 194-95, 

97 S. Ct. 451, 50 L. Ed. 2d 397 (1976)). “A person experiences an economic 

Westminster Pharm., LLC, 477 F. Supp. 3d 1251, 1262 (M.D. Fla. 2020) (citing Eaton v. 

Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982)). 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 5 of 10
injury when, as a result of a deceptive act or an unfair practice, he is deprived 

of the benefit of his bargain.” Debernardis v. IQ Formulations, LLC, 942 F.3d 

1076, 1084 (11th Cir. 2019) (citing Carriuolo v. Gen. Motors Co., 823 F.3d 977, 

986-87 (11th Cir. 2016)). Applying this principle, various courts have found

that a plaintiff sufficiently plead an injury-in-fact for purposes of Article III 

standing based on allegations that she would not have bought a product, or 

would have paid less for it, if not for its allegedly deceptive label. See Valiente v. 

Unilever United States, Inc., No. 22-21507-CIV, 2022 U.S. Dist. LEXIS 222409, 

at *13-16 (S.D. Fla. Dec. 8, 2022) (Lenard, J.) (compiling cases). However, as 

may be expected, other courts, including this one, have reached the oppositive 

conclusion on similar facts. See Doss v. Gen. Mills, Inc., Civil Action No. 18-

61924-Civ-Scola, 2019 U.S. Dist. LEXIS 100791, at *2 (S.D. Fla. June 14, 

2019) (Scola, J.) (dismissing complaint for lack of Article III standing where 

plaintiff “argue[d], without any meaningful analysis, that she ha[d] sufficiently 

alleged an ‘economic injury’ because she would not have bought” the product 

but for the seller’s deceptive practices in failing to disclose that they potentially 

contained a harmful substance), aff’d, 816 F. App’x 312 (11th Cir. 2020).

The difference in outcomes between the foregoing cases generally may be 

explained by the extent to which a plaintiff’s factual allegations effectively tie 

her alleged economic injury to the product’s deceptive and misleading aspects. 

Compare Rife v. Newell Brands, Inc., No. 20-80021-CIV, 2022 U.S. Dist. LEXIS 

179248, at *24 (S.D. Fla. Sep. 30, 2022) (Altman, J.) (plaintiffs sufficiently 

alleged injury-in-fact where defendants had specifically touted pressure 

cookers’ safety features, but defects in the cookers’ lids made those 

representations false and misleading) and Fitzpatrick v. Vital Pharm., Inc., No. 

20-61121-CIV, 2021 U.S. Dist. LEXIS 106402, at *5 (S.D. Fla. June 4, 2021) 

(Singhal, J.) (plaintiffs switched to defendant’s energy drink because the latter 

had advertised it as containing creatine, when, in fact, it did not contain 

creatine and, as a result, did not provide the metabolic health benefits 

expected) with Wheeler v. Panini Am., Inc., Civil Action No. 22-00763 (BAH), 

2022 U.S. Dist. LEXIS 208941, at *13-14 (D.D.C. Nov. 17, 2022) (“Apart from 

her wholly unsupported statement that the NPN lottery was the reason she 

purchased defendant’s trading card box—apparently on more than one 

occasion—plaintiff . . . alleges no other facts to support her overpayment 

theory, so that argument fails.”) and Aleisa v. GOJO Indus., 538 F. Supp. 3d 

764, 773 (N.D. Ohio 2021) (“Plaintiffs fail to allege any effect on the market 

price for the product at issue based on the allegedly false and misleading 

statements on which they base their claims. That is, crediting Plaintiffs’

allegations, the consolidated amended complaint lacks factually supported, 

plausible allegations that any representation at issue resulted in payment of a 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 6 of 10
premium.”); see also Caudel v. Amazon.com, Inc., No. 20-cv-00848-KJM-KJN, 

2021 U.S. Dist. LEXIS 199639, at *6 (E.D. Cal. Oct. 15, 2021) (“[I]n 

overpayment theory cases, the majority of courts have consistently found 

economic injury when the products contain an actual defect and are allegedly 

worth less than what the consumer paid.”). 

Here, Valiente does not allege that Publix’s honey-lemon cough drops 

were defective, did not work as advertised, or otherwise were so flawed as to 

render them worthless. To the contrary, he suggests that he purchased the 

product on more than one occasion. (Am. Compl. ¶ 65, ECF No. 9.) And, in line 

with this, he affirms his intention and desire to purchase the cough drops

again, conditioning his future purchase not on a modification of the product’s 

ingredients or makeup, but only on an assurance that its “representations”

coincide “with its abilities, attributes, and/or composition.” (Id. ¶ 77.) Valiente 

posits that, as a result of Publix’s representations, he and other Publix 

customers were deprived of the benefit of their bargain. However, unlike in 

most cases where courts have found overpayment allegations sufficient to 

confer Article III standing, Valiente fails to concretely tie the value of the cough 

drops to any of those purported representations.

Unlike in Rife v. Newell Brands, Inc., for example, Valiente does not allege 

that the cough drops function in a manner or have attributes materially 

different from how they are marketed by Publix. See No. 20-80021-CIV, 2022 

U.S. Dist. LEXIS 179248, at *24 (S.D. Fla. Sep. 30, 2022) (Altman, J.). Thus, 

while he says that consumers reading the product’s label “may” be misled to 

believe that it contains an appreciable amount of lemon, and that its 

antitussive and cough suppressant effects are due to its ability to soothe 

bronchial passages (instead of sore throats), Valiente does not make the factual 

connection between these supposed beliefs and anything Publix represented. 

Indeed, he specifically acknowledges that the product’s label discloses the 

cough drops’ only active, and other, ingredients in multiple places. (Am. Compl. 

¶¶ 14–16, ECF No. 9.) 

Similarly, Valiente does not allege any facts by which one might measure 

the difference between the “premium price” he claims to have paid and the 

cough drops’ fair market price. That is, he fails to tie any aspect of the 

product’s label to the supposedly “premium price” of “$1.79.” He does not 

allege, for instance, that cough drops without images of lemons sell for less 

than those with such images, and he does not compare the price of Publix’s 

lemon cough-drops to products with similar ingredients but “non-misleading” 

packaging. Valiente does not even specifically allege that cough drops 

containing a non-de minimis amount of lemon have a higher fair market price.

Instead, he provides only general allegations that consumers like himself may 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 7 of 10
understand Publix’s representations in a way that allow it to sell the cough 

drops at a premium price. 

In short, Valiente’s allegations as to why he has been deprived of the 

benefit of his bargain all boil down to his subjective, personal expectations of 

what the cough drops purported to do. This is not enough to plausibly allege a 

concrete economic injury for purposes of Article III standing. See, e.g., AustinSpearman v. AARP, 119 F. Supp. 3d 1, 13 (D.D.C. 2015) (“But conclusory 

statements regarding a plaintiff’s own beliefs and expectations are not 

sufficient to support an alleged ‘overpayment’ injury[.]”). “A plaintiff does not 

have standing to sue a defendant merely because of his or her buyer’s 

remorse.” In re Zantac Prods. Liab. Litig., No. 2924, 2023 U.S. Dist. LEXIS 

61325, at *189 (S.D. Fla. Apr. 6, 2023).

Put simply, Valiente has failed to allege an economic injury in fact based 

on his purchase of the honey-lemon cough drops, and he therefore lacks 

standing.

B. Article III Standing for Injunctive Relief 

Publix also argues that Valiente does not have standing to seek 

injunctive relief because his allegations that he is aware of the purported flaws 

with the product’s label establish that he is not at risk of being deceived in the 

future. Valiente counters that he has alleged a sufficient likelihood of being 

affected by Publix’s conduct in the future because its deceptive practices 

continue, thus affecting his ability to rely on the labeling and representations 

on both Publix’s cough drops and other similar products. 

First, because Valiente has failed to plausibly set forth the only injury 

alleged in his complaint—i.e., monetary damages resulting from his purported 

overpayment for the cough drops—his claim for injunctive relief must fail as 

well. In other words, it is not impossible that Valiente’s claim for injunctive 

relief could proceed even where he failed to plausibly allege an economic injury. 

For example, in seeking declaratory or injunctive relief pursuant to Florida’s 

Deceptive and Unfair Trade Practices Act, a plaintiff must establish only that 

she has been “aggrieved” by the conduct at issue. Fla. Stat. § 501.211(1). 

However, neither Valiente’s amended complaint nor his response to Publix’s 

motion to dismiss suggest any injury other than his purported economic harm 

under the price premium theory. Thus, he has not sufficiently alleged that he 

suffered any other kind of loss or otherwise been “aggrieved” by Publix’s 

conduct. 

Second, even if Valiente had pled a plausible injury, he would still fail to 

establish Article III standing for purposes of injunctive relief because he has 

not alleged how he will be impacted by Publix’s alleged wrongful conduct in the 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 8 of 10
future. “Because injunctions regulate future conduct, a party has standing to 

seek injunctive relief only if the party shows a real and immediate—as opposed 

to a merely conjectural or hypothetical—threat of future injury.” Kennedy v. 

Floridian Hotel, Inc., 998 F.3d 1221, 1229 (11th Cir. 2021) (cleaned up).

“Applying these standards, ‘[s]everal . . . circuits have considered whether a 

previously [but no longer] deceived consumer has standing to seek injunctive 

relief and have held they do not.’” Rife v. Newell Brands, Inc., No. 20-80021-

CIV, 2022 U.S. Dist. LEXIS 179248, at *31-32 (S.D. Fla. Sep. 30, 2022) 

(Altman, J.) (quoting Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 970 n.5 

(9th Cir. 2018)). 

Valiente’s only forward-looking allegations state that he “intends to, 

seeks to, and will purchase the [cough drops] again when he can do so with the 

assurance the [p]roduct’s representations are consistent with its abilities, 

attributes, and/or composition[,]” and that he “is unable to rely on the labeling 

and representations not only of [Publix’s cough drops], but for other similar 

cough suppressant and oral anesthetic lozenges with added fruit ingredients 

and promises to soothe sore throats, because he is unsure whether those 

representations are truthful.” (Am. Compl. ¶¶ 77–79, ECF No. 9.) These 

allegations do not show Valiente suffering a future harm. To the contrary, they 

indicate that he will not purchase either Publix’s cough drops or similar 

products until he can be sure that his purported concerns have been cured. 

Because Valiente’s “allegations make clear that [he] will not purchase 

more of [the purportedly deceptive] products so long as the labelling does not 

meet [his] standards[,]” he “lack[s] standing to assert a claim for injunctive 

relief.” See Snyder v. Green Rds. of Fla. LLC, 430 F. Supp. 3d 1297, 1304 (S.D. 

Fla. 2020) (Ungaro, J.); see also Barron v. Snyder’s-Lance, Inc., 2015 U.S. Dist. 

LEXIS 189625, 2015 WL 11182066, at *10 (S.D. Fla. Mar. 20, 2015) (Lenard, 

J.) (“The Court finds that Plaintiffs have not established a real and immediate 

threat of future injury, because they have not alleged that they intend to 

purchase the allegedly mislabeled product again.”). 

4. Conclusion 

For the reasons stated above, the Court finds that it lacks subject matter 

jurisdiction because Valiente has failed to plausibly plead Article III standing.

The Court thus grants Publix’s motion to dismiss. (Mot., ECF No. 11.) In 

addition, because “[a] dismissal for lack of subject matter jurisdiction is not a 

judgment on the merits[,]” the Court dismisses Valiente’s amended complaint 

“without prejudice.” See Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d 

1229, 1232 (11th Cir. 2008) (emphasis added) (remanding with instructions to 

reenter judgment without prejudice where the district court dismissed for lack 

Case 1:22-cv-22930-RNS Document 18 Entered on FLSD Docket 05/24/2023 Page 9 of 10
for standing); see also Koonce-Hope v. Bass, No. 22-11706, 2023 U.S. App. 

LEXIS 5649, at *4 (11th Cir. Mar. 9, 2023).

Finally, the Court dismisses Valiente’s complaint without leave to 

amend. Valiente requests leave to amend as an afterthought, at the end of his 

response in opposition to Publix’s motion to dismiss, making the request both 

procedurally defective and lacking in substantive support under Eleventh 

Circuit Precedent. See Newton v. Florida, 895 F.3d 1270, 1277-78 (11th Cir. 

2018) (reaffirming the rule that a request for leave to amend is not properly 

raised if embedded in a memorandum in opposition to a motion to dismiss); 

see also Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 

2018) (“[W]e’ve rejected the idea that a party can await a ruling on a motion to 

dismiss before filing a motion for leave to amend.”). The Court will not now 

afford Valiente another bite at the apple where he declined “to follow the welltrodden procedural path toward amendment.” Eiber Radiology, Inc. v. Toshiba 

Am. Med. Sys., Inc., 673 Fed. App’x 925, 930 (11th Cir. 2016).

The Clerk is directed to close this case. 

Done and ordered at Miami, Florida on May 24, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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