UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-81883-Ruiz/McCabe

BRITTANY ROBERSON, et al., 

Plaintiffs, 

v. 

HEALTH CAREER INSTITUTE LLC, et al., 

Defendants. 

_________________________________/ 

REPORT & RECOMMENDATION

ON PARTIAL MOTION TO DISMISS

THIS CAUSE came before the Court on Defendants’ Partial Motion to Dismiss and Strike 

Second Amended Complaint (“Motion”) (DE 99), which was referred to the undersigned by 

United States District Judge Rodolfo A. Ruiz, II (DE 135). For the reasons set forth below, the 

undersigned RECOMMENDS that the Motion be DENIED.

I. Background 

This is a putative class action against a for-profit nursing school alleging, among other 

claims, violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. 

§ 501.201 et seq. Plaintiffs seek to represent a class comprised of students who attended the school, 

subject to certain parameters, from September 1, 2019 to the present (DE 93 ¶ 474). In February 

2023, Plaintiffs filed a First Amended Complaint (“FAC”) (DE 40), which Defendants moved to 

dismiss (DE 55), resulting in a detailed order from the District Court, dismissing portions of the 

FAC (DE 84). 

On September 1, 2023, Plaintiffs filed a Second Amended Complaint (“SAC”) (DE 93), 

attempting to cure the deficiencies identified by the District Court’s previous order. The SAC 

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alleges the following counts against the various Defendants, Health Career Institute LLC (“HCI”), 

its parent company, Florian Education Investors LLC (“Florian”), and the chief executive of both 

organizations, Steven W. Hart:

Count 1 FDUTPA Violation based on Grading and Advancement against all 

Defendants

Count 2 FDUTPA Violation based on Misrepresentation of Educational Services 

Provided against all Defendants

Count 3 FDUTPA Violation based on Unauthorized Retail Installment Contracts

against all Defendants

Count 4 Breach of Contract based on Grading and Advancement against HCI and 

Florian

Count 5 Breach of Contract based on Clinical Placement against HCI and Florian

Count 6 FDUTPA Violation based on “New” Program against all Defendants

Count 7 FDUTPA Violation based on Withholding Advancement and Transcripts 

from Students for Defendants’ Financial Gain against all Defendants

Count 8 FDUTPA Violation based on VATI Course against all Defendants

Count 9 Equal Credit Opportunity Act Violation against HCI

Count 10 Title VI of the Civil Rights Act of 1964 Violation against HCI

(DE 93). 

This Motion followed, seeking dismissal of all or portions of the FDUTPA claims alleged 

in Counts 1, 2, 3, 6, 7, and 8, pursuant to Fed. R. Civ. P. 12(b)(6). 

II. Legal Standard

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must 

accept a plaintiff’s allegations as true and construe them in the light most favorable to the plaintiff. 

Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although Rule 8(a)(2) requires only 

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“a short and plain statement of the claim showing that the pleader is entitled to relief,” a mere 

“formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555 (2007). Instead, “a complaint must contain sufficient factual matter, accepted 

as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (cleaned up). “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.” Id.

III. Discussion

Defendants urge dismissal of all or portions of the FDUTPA claims alleged in Counts 1, 

2, 3, 6, 7, and 8 on multiple grounds, each of which the Court will address in turn.

A. Individual FDUTPA Liability for Defendants Hart and Florian 

Defendants first argue that the SAC fails to allege sufficient facts to state viable claims of 

individual FDUTPA liability against Defendants Hart and Florian in Counts 1, 2, 3, 6, 7, and 8

(DE 99 at 4-8).

1

 “It has long been the law in Florida that in order to proceed against an individual 

using a FDUTPA violation theory an aggrieved party must allege that the individual was a direct 

participant in the improper dealings.” KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 1074 (Fla. 5th 

DCA 2008) (cleaned up); see also Aboujaoude v. Poinciana Development Co. II, 509 F.Supp.2d 

1266, 1277-78 (S.D. Fla. 2007) (“In order to proceed against an individual for a violation of 

FDUTPA, a plaintiff must allege that the individual was a ‘direct participant’ in the dealings.”)

(cleaned up).

1 The Court notes that Florian is a company, not an individual person. In briefing this matter, the 

parties attached no significance to this distinction (DE 99 at 4-8, DE 122 at 5-9). Accordingly, the 

Court will do likewise.

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Borrowing from the analogous model of the Federal Trade Commission Act (“FTCA”), 

numerous federal district courts have recognized that FDUTPA’s concept of direct participation 

includes an individual defendant’s ability to control the violative conduct, coupled with knowledge 

of that conduct. In Fed. Trade Comm’n v. Student Aid Ctr., Inc., 281 F. Supp. 3d 1324, 1336 (S.D. 

Fla. 2016), for example, the court denied an individual defendant’s motion to dismiss and, in doing 

so, described the FTCA and FDUTPA standards for individual liability as one in the same, 

reasoning as follows:

To be individually liable for FTC[A] and FDUTPA violations, the [plaintiff] must 

show that the individual (1) participated directly in the deceptive acts or practices; 

or (2) possessed the authority to control them; and (3) had some knowledge of the 

practices. 

(citing FTC v. Gem Merch. Corp., 87 F.3d 466, 470 (11th Cir. 1996) (affirming finding of 

individual FTCA liability where individual defendant had direct control over the corporation's 

activities and knowledge of the illegal practices)). 

Other courts have agreed with this approach, applying the FTCA standard for individual

liability to FDUTPA claims. See Gov. Empl. Ins. Co. v. Glassco Inc., No. 8:19-CV-1950-KKMJSS, 2021 WL 4391717, at *12 (M.D. Fla. Sept. 24, 2021) (denying summary judgment on 

FDUTPA claim based on genuine issues of material fact concerning individual defendant’s level 

of control over the entity’s violative conduct); see also Bluegreen Vacations Unlimited, Inc. v. 

Timeshare Termination Team, LLC, No. 20-CV-25318, 2023 WL 4105529, at *8 (S.D. Fla. June 

21, 2023) (treating FDUTPA and FTCA standards for individual liability as one in the same); 

Wyndham Vacation Ownership, Inc. v. Salkin, No. 6:19-CV-817-PGB-EJK, 2023 WL 4350566, 

at *5 (M.D. Fla. Apr. 25, 2023), R. & R. adopted, 2023 WL 4350441 (M.D. Fla. May 15, 2023) 

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(same); McNider Marine, LLC v. Cain & Daniels, Inc., No. 8:17-2561, 2018 WL 5293013, at *1 

n.2 (M.D. Fla. Oct. 25, 2018) (same).

Applying these cases here, the Court finds the SAC alleges sufficient facts to demonstrate 

individual FDUTPA liability against Defendants Hart and Florian based on a theory of ability to 

control, coupled with knowledge of, the violative conduct. To begin, the SAC alleges that 

Defendants Hart and Florian “had the authority to control, and did control” the violative conduct 

alleged in Counts 1, 2, 3, 6, 7, and 8 (DE 93 ¶¶ 494, 500, 505, 533, 540, 545). The SAC likewise 

alleges that Defendants Hart and Florian had knowledge of the violative conduct alleged in Counts 

1, 2, 3, 6, 7, and 8 through Defendant Hart’s participation in Executive Committee meetings and 

dealings with HCI administrators (DE 93 ¶¶ 494, 500, 505, 533, 540, 545).

The Court finds these allegations plausible based on other facts alleged in the SAC, 

including the following:

• Florian is the sole managing member of HCI, and Florian has no employees other 

than Hart, who serves as Florian’s CEO (DE 93 ¶¶ 52–53, 98).

• Florian, as the sole managing member of HCI, also appointed Hart to serve as CEO 

of HCI “to carry out the business of [HCI]” (DE 93-3 at 5). 

• HCI’s Operating Agreement provides that the CEO (Hart) “shall, subject to the 

direction of [Florian], have general supervision and control of [HCI’s] business”

(DE 93 ¶ 102).

• HCI’s Operating Agreement also provides that “[t]he powers of [HCI] shall be 

exercised by or under the authority of, and the business affairs of [HCI] shall be 

managed under the direction of [Florian]” (DE 93-3 at 5).

• In his role as Chairman of HCI, Hart directed HCI’s President and CEO, and Hart 

sat “on HCI’s Executive Committee with the company’s CEO and CFO” (DE 93 ¶ 

56).

• By participating in HCI’s Executive Committee meetings, Hart became aware of 

HCI's activities (DE 93 ¶¶ 494, 500, 505, 533, 540, 545).

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• Hart and Florian also exercised control over HCI through “Authorization

Guidelines,” which governed a number of HCI’s operations including “procedures 

for budgeting and forecasting; ... student tuition financing, including specific 

policies governing the retail installment contracts serviced by Tuition Options; and 

minimum entry requirements for incoming students” (DE 93 ¶ 103).

• The Authorization Guidelines specified that any exceptions to, or clarifications of, 

the Authorization Guidelines could only be obtained from “the Chairman,” i.e., 

Hart (DE 93 ¶ 103).

• Hart did not have a Florian email account and instead, “nearly all electronic

communication” he sent and received pertaining to [Florian] came through his HCI 

email address (DE 93 ¶ 104).

• Hart was “kept apprised of many day-to-day issues regarding HCI, including

student complaints, and [he] regularly consult[ed] with the President and CEO 

about issues and decisions related to HCI’s operations” (DE 93 ¶ 105).

The Court finds these allegations, taken as a whole, sufficient to survive a motion to 

dismiss. Specifically, the Court finds these allegations sufficient to state a plausible claim that

Defendants Hart and Florian had the ability to control, and knowledge of, the FDUTPA violations 

alleged in Counts 1, 2, 3, 6, 7, and 8. See Fed. Trade Comm’n v. Life Mgmt. Servs. of Orange 

Cnty., LLC, 350 F. Supp. 3d 1246, 1260 (M.D. Fla. 2018) (“Authority to control [a] company can 

be evidenced by active involvement in business affairs and the making of corporate policy, 

including assuming the duties of a corporate officer.”) (cleaned up); Fed. Trade Comm’n v. 

Transnet Wireless Corp., 506 F.Supp.2d 1247, 1270 (S.D. Fla. 2007) (noting that “[a]n 

individual’s status as a corporate officer gives rise to a presumption of ability to control a small, 

closely-held corporation”) (cleaned up). 

The Court has considered, but finds unpersuasive, Defendants’ argument that FDUTPA’s 

concept of “direct participation” does not allow for liability based on an individual defendant’s 

mere ability to control, coupled with knowledge of, the violative conduct (DE 132 at 2-5). The 

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Court rejects Defendants’ arguments based on the weight of authority cited above, allowing for 

individual FDUTPA liability on that basis. 

To be sure, Defendants have pointed to many shortcomings in the level of detail in the 

SAC, such as specific actions taken by Hart or Florian showing participation in, or ability to 

control, the alleged violations (DE 99 at 5-6). But a plaintiff need not prove his or her case at the 

motion-to-dismiss stage; instead, a plaintiff need only state a plausible claim for relief. The Court 

finds Plaintiffs have done so here. This holding does not preclude a different result at summary 

judgment with the benefit of a full factual record.

B. FDUTPA Liability for Retail Installment Contracts (Counts 3 & 7) 

Defendants next seek dismissal of Counts 3 and 7, both of which allege FDUTPA 

violations based upon HCI’s use of retail installment contracts. Specifically, Count 3 alleges 

Defendants engaged in a deceptive and unfair practices by offering retail installment contracts, and 

thereafter collecting payments on them, without first obtaining the necessary license allegedly 

required under Florida law (DE 93 ¶¶ 503-09). Count 7 alleges Defendants engaged in a deceptive 

and unfair practice by withholding student transcripts and program advancement until such time 

as students made payments on the allegedly illegal retail installment contracts (DE 93 ¶¶ 536-42).

Defendants urge dismissal of these counts on multiple grounds, each of which the Court 

will address in turn.

1. “Retail Seller” Under Florida’s Retail Installment Sales Act

Defendants first argue that Counts 3 and 7 must be dismissed because HCI did not qualify 

as a “retail seller” under Florida’s Retail Installment Sales Act (“RISA”), Fla. Stat. § 520.30, et. 

seq. Specifically, RISA imposes a state licensing requirement, subject to certain exemptions not 

relevant here, on “retail sellers” who engage in “retail installment transactions.” Fla. Stat. §

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520.32(1). The statute defines “retail seller,” in relevant part, as “a person regularly engaged in, 

and whose business consists to a substantial extent of, selling goods to a retail buyer.” Fla. Stat. §

520.31(16) (emphasis added). Defendants argue that HCI did not sell “goods” within the meaning 

of RISA and, therefore, HCI did not meet the definition of “retail seller” (DE 99 at 10-12). As 

such, HCI had no obligation to become licensed, thereby undermining the legal premise of Counts 

3 and 7, namely, that HCI entered into “illegal” retail installment contracts (DE 99 at 10-12).

The Court cannot determine, on a motion to dismiss, the extent to which HCI’s business 

included the sale of “goods” within the meaning of RISA.2 This inquiry would require 

consideration of evidence outside the four corners of SAC, including but not limited to, the specific 

items regularly conveyed from HCI to its students and whether these items included books, 

laboratory equipment, or the like. The SAC does not include these factual details, nor in the Court's 

view was it required to do so, as the heightened pleading standards of Fed. R. Civ. P. 9(b) do not 

apply to FDUTPA claims. Lewis v. Mercedes-Benz USA, LLC, 530 F. Supp. 3d 1183, 1228 (S.D. 

Fla. 2021). To the extent Defendants seek to prove the RISA licensing requirements did not apply 

to HCI, they must do so at summary judgment or a later stage of the case with the benefit of a full 

factual record as to the nature of items regularly conveyed from HCI to its students.

3

 In the

meantime, the Motion should be denied on this ground.

2 Under RISA, the term “goods” means “all personalty when purchased primarily for personal, 

family, or household use, including certificates or coupons issued by a retail seller exchangeable 

for personalty or services, but not including other choses in action, personalty sold for commercial 

or industrial use, money, motor vehicles or construction, mining, or quarrying equipment. The 

term “goods” includes such personalty which is furnished or used, at the time of sale or 

subsequently, in the modernization, rehabilitation, repair, alteration, improvement, or construction 

of real property as to become a part thereof, whether or not severable therefrom.” Fla. Stat. § 

520.31(7).

3 Plaintiffs have included in their response to this Motion an excerpt from a sample Retail 

Installment Contract obtained from HCI's website, which states “This Contract is for educational 

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2. Actual Damages

Defendants next argue Counts 3 and 7 fail to state a claim for “actual” damages, a 

mandatory requirement for FDUTPA claims. See Dorestin v. Hollywood Imports, Inc., 45 So. 3d 

819, 824–25 (Fla. 4th DCA 2010) (noting that “[p]roof of actual damages is necessary to sustain 

a FDUTPA claim” and that “[t]he statute does not allow the recovery of other damages, such as 

consequential damages”). Defendants raised this argument in their first motion to dismiss, but the 

District Court rejected it, finding that Plaintiffs stated a viable claim for actual damages in the form 

of retail installment contract payments they would not have otherwise made, due to the alleged 

illegality of the contracts (DE 84 at 26). The Court reasoned:

Defendants argue that Count 3 should fail because it does not allege actual damages 

caused by the statutory violations. Mot. at 28. But Plaintiffs allege that they 

“would not have entered into or paid amounts toward unenforceable, illegal 

contracts” had they known HCI was unlicensed to offer the retail installment 

contracts. See FAC ¶ 472. Accordingly, Plaintiffs allege damages “equal [to] the 

amounts they paid pursuant to the illegal contracts, any amounts they purportedly 

owe on such contracts, and any associated fees.” Id. ¶ 474. Whether Plaintiffs can 

prove that they are entitled to those damages is yet to be determined. But the fact 

that they allegedly would not have entered into the retail installment contracts but 

for HCI’s deceptive conduct and could have pursued “more favorable financing 

options” shows that they suffered a financial loss cognizable as actual damages.

See id. ¶ 162.

(DE 84 at 26-27).

Defendants renew the argument here, this time incorporating their “retail seller” argument 

under RISA. That is, Defendants argue (1) HCI did not meet RISA’s definition of “retail seller,”

goods and services provided to you by SCHOOL” (DE 122 at 11) (emphasis added). The Court 

has not considered this document in connection with this Motion as Defendants have not stipulated 

to its authenticity. See SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th 

Cir. 2010) (noting that, on a motion to dismiss, courts should consider documents outside the 

pleadings only when the document is (1) central to the plaintiff's claim, and (2) its authenticity is 

not challenged).

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and therefore (2) HCI had no obligation to become licensed under RISA, and therefore (3) HCI’s 

retail installment contracts were not “illegal” as alleged in the SAC, and therefore (4) Plaintiffs

cannot claim actual damages in the form of retail installment contract payments they would not 

have otherwise made due to the illegality of the contracts (DE 99 at 12-13).

The Court rejects this argument for the same reason set forth in section III.B.1 above, 

namely, the Court cannot determine, on a motion to dismiss, whether HCI met the definition of

“retailer seller.” Since Defendants’ argument regarding actual damages hinges upon resolution of 

the “retail seller” issue, the Court declines to dismiss Counts 3 or 7 at this time based on this 

argument.

The Court has also considered, but finds unpersuasive, Defendants’ argument that Counts 

3 and 7 overlap one another, such that one of the two counts should be dismissed as duplicative

(DE 99 at 13). The Court has reviewed both counts and finds they allege distinct theories of 

liability. Count 3 alleges Defendants committed an unfair and deceptive practice by entering into 

retail installment contracts, and thereafter collecting payments on them, without first obtaining the 

license allegedly required under Florida law (DE 93 ¶¶ 503-09). Count 7 alleges Defendants 

committed an unfair and deceptive practice by refusing to allow students to progress through the 

academic program or obtain academic transcripts until they paid balances owed on the allegedly 

illegal retail installment contracts (DE 93 ¶¶ 536-542). While damages may overlap between the 

two counts, the Court finds the underlying legal theories sufficiently different to justify pleading 

in separate counts. As such, the Motion should be denied on this ground.

3. Successive Motion Under Fed. R. Civ. P. 12(g)(2)

In addition, the Court finds Defendants’ “retail seller” argument to be barred by the 

prohibition against successive motions set forth in Fed. R. Civ. P. 12(g)(2), which provides that a 

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party who “makes a motion under [Rule 12] must not make another motion under this rule raising 

a defense or objection that was available to the party but omitted from its earlier motion.” In this 

case, the FAC previously alleged that HCI's retail installment contracts were illegal and 

unenforceable due to HCI’s failure to obtain the mandatory license allegedly required by Florida 

law (DE 40 ¶¶ 26, 141-42, 152, 455, 470-71). Based on these allegations, the Court finds the 

“retail seller” argument raised in the current Motion was “available” to Defendants, within the 

meaning of Fed. R. Civ. P. 12(g)(2), at the time of the previous motion to dismiss, thereby 

precluding the argument here. 

The Court has considered, but finds unpersuasive, Defendants’ argument that the SAC 

added new factual allegations, thus making Fed. R. Civ. P. 12(g)(2) inapplicable. See, e.g., In re 

Adler, Coleman Clearing Corp, No. 06-80157-CIV, 2008 WL 11411962, at *4 (S.D. Fla. Aug. 13, 

2008) (noting that a party may file a new motion to dismiss when “the revised pleading contain[s] 

new information or different allegations making it subject to a defense or objection that was not 

previously apparent to the movant.”) (cleaned up). Defendants correctly point out that Count 7 of 

the SAC added the adjectives “illegal” and “unenforceable” to describe the retail installment 

contracts in three sentences of the revised pleading (compare DE 93 ¶¶ 538-39, with DE 40 ¶¶

495-500). In the Court’s view, however, this argument overlooks the fact that the FAC previously 

referred to the same retail installment contract as “illegal” and “unenforceable” in Count 3, and 

the FAC also repeatedly alleged, in the main body of the pleading, that HCI had failed to obtain 

the necessary license allegedly required by Florida law to offer retail installment contracts (DE 40 

¶¶ 26, 141-42, 152, 455, 470-71). For all of these reasons, the Court finds the “retail seller”

argument to be barred.

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C. FDUTPA Liability for the Capstone and VATI Courses

Finally, Defendants seek dismissal of Count 8, which alleges a FDUTPA violation based 

on the Capstone and VATI courses (DE 93 ¶¶ 543-48). Specifically, the SAC alleges Defendants

committed an unfair and deceptive practice by charging Plaintiffs over $4,000 for a required

program known as the “Capstone” course, when in reality, the course consisted almost exclusively

of an at-home, online virtual course known as “Virtual-ATI” or “VATI,” offered by a third-party 

company and available for sale to the general public for only $525 (DE 93 ¶ 544). The SAC 

alleges damages measured by the difference between the cost of the Capstone course and the cost 

of the publicly available VATI course (DE 93 ¶ 548).

Count 8 of the previous FAC alleged a common law claim of unjust enrichment based on 

the same basic facts now alleged in Count 8 of the SAC (compare DE 93 ¶¶ 543-48, with DE 40 

¶¶ 501-06). The District Court dismissed the previous version of Count 8 for failure to state a 

claim of unjust enrichment, but noted that “[i]t may be true that Defendants’ allegedly deficient 

Nursing Capstone course could ... consist of an unfair and deceptive business practice” (DE 84 at 

20). Plaintiffs have now re-formulated their unjust enrichment claim into a FDUTPA claim.

Defendants urge dismissal of the new count on multiple grounds, each of which the Court 

will address in turn.

1. Improper Amendment

Defendants first argue Plaintiffs lacked permission to refile Count 8 (DE 99 at 14-16). 

They correctly point out that the District Court's previous order of dismissal specified a dismissal 

“with leave to amend” for Counts 1, 2, 3, 6 and 7 (DE 84 at 36-37). As to Count 8, however, the 

District Court’s order remained silent as to leave to amend, which silence Defendants interpret as 

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a dismissal with prejudice. Moreover, as Defendants correctly point out, the deadline to amend 

pleadings under the District Court’s scheduling order expired on March 17, 2023 (DE 35).

Given that the District Court’s previous order did not specify a dismissal with prejudice, 

and that Fed. R. Civ. P. 15 favors the liberal amendment of pleadings, the Court recommends that 

Count 8 be allowed to stand. To the extent necessary, the Court finds good cause for an 

amendment, as the District Court previously observed that “Defendants’ allegedly deficient 

Nursing Capstone Course could ... consist of an unfair and deceptive business practice” (DE 84 

at 20). Also, the Court finds little prejudice to Defendants given that Plaintiffs have not amended 

the underlying factual allegations of Count 8 and have merely changed the legal theory on which 

the count attempts to proceed. Should Defendants wish to seek clarification of the District Court’s 

previous order regarding the dismissal of Count 8, Defendants can do so by way of objections to 

this Report and Recommendation.

2. Failure to State a Claim

Defendants next argue Count 8 fails to state a FDUTPA claim as a matter of law (DE 99 at 

16-18). “A consumer claim for damages under FDUTPA has three elements: (1) an objectively 

deceptive act or unfair practice; (2) causation; and (3) actual damages.” Lewis v. Mercedes-Benz 

USA, LLC, 530 F. Supp. 3d 1183, 1226 (S.D. Fla. 2021) (cleaned up). The Florida Supreme Court 

has noted that “deception occurs if there is a representation, omission, or practice that is likely to 

mislead the consumer acting reasonably in the circumstances, to the consumer's detriment.” PNR, 

Inc. v. Beacon Property Management, Inc., 842 So. 2d 773, 777 (Fla. 2003) (cleaned up). A 

deceptive act or practice includes situations where a seller misrepresents the items delivered to, or 

the charges collected from, a consumer. See Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699, 

703 (Fla. 3d DCA 2000) (finding viable FDUTPA claim where cruise line charged customers for 

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“port charges,” but in reality, paid only a portion to the port and pocketed the rest); Zamberv. 

American Airlines, Inc., 282 F. Supp. 3d 1298-1301 (S.D. Fla. 2017) (finding viable FDUTPA 

claim where airline collected money for travel insurance, allegedly to be paid to a third-party

insurance provider, when in reality, the third party paid a portion back to the airline as a kickback). 

In this case, the SAC alleges Defendants committed an unfair and deceptive practice by 

requiring students to enroll in the Capstone course, and charging them over $4,000 for it, when in 

reality, the course consisted “almost entirely” of, or “little more” than, the online VATI course,

administered by a third party and available to the general public for only $525 (DE 93 ¶¶ 27, 309, 

364, 544). The SAC requests damages measured by the difference between the cost of the 

Capstone course and the cost of the VATI course the public marketplace (DE 93 ¶ 548). 

The Court finds these allegations, taken as whole, sufficient to allege an objectively 

deceptive act or unfair practice for purposes of a FDUTPA claim. A reasonable consumer would 

assume that a “Capstone” course, required by a nursing school in order to graduate from the 

program and sit for the final state licensing exams, and costing over $4,000, would consist of 

something materially different than an online course administered by a third party, which the 

consumer could have purchased from the third party in the public marketplace for only $525.

The Court has considered, the finds unpersuasive, Defendants’ argument that Count 8 

alleges a mere breach of contract, not cognizable as a FDUTPA claim. “Florida law permits a 

FDUTPA claim to travel with a related breach of contract claim if the FDUTPA claim challenges 

the acts underlying or giving rise to the breach, and does not rely solely on a violation of the 

Agreement as a basis for assertion of a FDUTPA claim.” Kenneth F. Hackett & Assocs., Inc. v. 

GE Cap. Info. Tech. Sols., Inc., 744 F. Supp. 2d 1305, 1312 (S.D. Fla. 2010) (cleaned up). In the 

Court’s view, Count 8 does not rely on HCI’s alleged breach of a contractual promise to deliver 

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the Capstone course to its students. Instead, Count 8 relies on HCI’s allegedly deceptive and unfair 

conduct of delivering an inferior product that students could have purchased in the public 

marketplace for only 1/8 of the price charged by HCI.

To the extent Defendants challenge causation and damages, the Court finds the SAC 

adequately pleads these elements. As to causation, the SAC alleges that Defendants’ unfair and 

deceptive practices caused them to purchase the Capstone course (DE 93 ¶ 548). As to damages, 

the SAC alleges damages measured by the difference between the cost of the Capstone course and 

the cost of the VATI course the public marketplace (DE 93 ¶ 548). The Court finds these 

allegations sufficient.

IV. Conclusion 

 For the reasons stated above, the undersigned RECOMMENDS that the Motion (DE 99) 

be DENIED.

The parties shall have fourteen (14) days from the date of being served with a copy of this 

Report and Recommendation within which to file written objections, if any, with United States 

District Judge Rodolfo A. Ruiz, II. Failure to file objections timely shall bar the parties from a de 

novo determination by the District Judge of an issue covered in the Report and Recommendation 

and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions 

contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1. 

RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern 

District of Florida, this 12th day of December 2023. 

RYON M. MCCABE

U.S. MAGISTRATE JUDGE 

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