Zambrano v. Wanderu, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-23565-BLOOM/Elfenbein
JOSHUA ZAMBRANO,
individually and on behalf of all others similarly
Plaintiffs,
v.
WANDERU, INC.,
Defendant.
_________________________/
ORDER ON MOTION TO DISMISS CLASS ACTION COMPLAINT
THIS CAUSE is before the Court upon Defendant Wanderu, Inc.’s (“Wanderu”) Motion
to Dismiss Plaintiff’s Class Action Complaint, ECF No. [16]. Plaintiff Joshua Zambrano filed a
Response in Opposition (“Response”), ECF No. [21], to which Wanderu filed a Reply, ECF No.
[24]. The Court has carefully reviewed the Motion, the record in this case, the applicable law, and
is otherwise fully advised. For the reasons discussed below, Wanderu’s Motion is granted.
I. 	BACKGROUND
This action arises from a dispute between the parties over the purportedly excessive and
deceptive fees Wanderu charges customers who purchase tickets for transportation to, from, or
within Florida on Wanderu’s website. Plaintiff is an individual consumer who purchased a round-
trip ticket from Miami, Florida, to Orlando, Florida, on November 16, 2023, through Wanderu’s
website, https://www. wanderu.com/. ECF No. [1] at ¶ 13. “Wanderu is an online travel metasearch
engine aggregating prices and available offerings by bus, train, ferry, and flight.” ECF No. [16] at
3; ECF No. [21] at 6. Wanderu provides transportation options to customers, but it is not a common
carrier. See id.
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The Complaint alleges as follows: Wanderu overcharged Plaintiff and other similarly
situated customers additional deceptive fees for transportation tickets in violation of the Florida
Deceptive and Unfair Trade Practices Act (“FDUTPA”). ECF No. [1] at ¶ 2. According to Plaintiff,
Fla. Stat. § 817.36(1) provides that a “person or entity that offers for resale or resells any ticket
may charge only $1 above the admission price charged therefor by the original ticket seller of the
ticket for [] transactions [involving] passage or accommodations on any common carrier in this
state.” Id. (quoting Fla. Stat. § 817.36(1)(a)). Wanderu is a reseller of common carrier tickets in
Florida yet still charges more than $1.00 in additional fees for tickets purchased on its website.1
Because FDUTPA provides that a violation may be predicated on ‘“any law, statute, rule,
regulation, or ordinance,’ which proscribes such conduct in trade or commerce,” Wanderu’s fees
in excess of the amount permitted by § 817.36(1)(a) constitutes a “per se violation” of FDUTPA’s
prohibition on “unfair methods of competition, unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of any trade or commerce.” ECF No. [1] at ¶¶ 7, 30
(quoting Fla. Stat. § 501.204.).
In addition to illegally overcharging customers excess fees, Wanderu has violated
FDUTPA by “hiding its fees in a ‘taxes & fees’ line-item.” ECF No. [1] at ¶ 8. To demonstrate
how Wanderu hides its fees, the Complaint walks through Wanderu’s booking process. The
customer begins by entering the departure and destination locations and the dates of travel. See
ECF No. [1] at ¶ 15; see also Figure 1.
1 Plaintiff alleges that Wanderu’s additional fees typically range between $3.00 to $5.00.
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FIGURE 1
The customer is then “taken to a screen which provides a list of transportation options.” Id. at ¶
16; see Figure 2.
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FIGURE 2
After the customer selects a ticket, the customer is shown a ticket selection confirmation with an
option to “Book” the ticket. ECF No. [1] at ¶ 17; see Figure 3.
FIGURE 3
Once the customer selects the tickets, the customer is presented with a new page prompting the
customer to provide his or her contact information and passenger details. ECF No. [1] at ¶ 18. It is
on this page that the customer sees for the first time that Wanderu is charging additional “Taxes
and fees.” Id.; see Figure 4.
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FIGURE 4
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When a consumer hovers over the “i” information mark to learn more about the purpose of
the “Taxes and fees,” Wanderu simply “explains that the ‘Taxes and fees’ ‘cover any applicable
taxes, reservation fees, and, if charged, carrier fees.”’ ECF No. [1] at ¶ 19. However, Wanderu
does not include a breakdown of the various fees and charges included in its “Taxes and fees”
charge. Id.
FIGURE 5
As a result of the ambiguities in the “Taxes and fees” charge,” Wanderu implies that some portion
of the taxes and fees are charged by the government, when the reality is that the charge only
comprises the service fees of Wanderu and the common carrier. ECF No. [1] at ¶ 20;2 see Figure
5.
2 To support the contention that there is no governmental entity charging additional taxes, Plaintiff alleges
that when a customer seeks to purchase “the very same bus or train ticket for the very same route at the
very same time from the common carrier directly, they are quoted a price without any taxes.” ECF No. [1]
at ¶ 21.
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FIGURE 6
As seen in Figure 6 above, Wanderu charges customers an excess service fee that the customer
would otherwise not have been charged if the customer had booked directly with the common
carrier. See ECF No. [1] at ¶ 22. Indeed, even where the common carrier charges no fees at all,
Wanderu still imposes a service fee more than the $1.00 limit provided under Fla. Stat. § 817.36.
See e.g., Figures 6 and 7.
FIGURE 6
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FIGURE 7
The Complaint asserts a FDUTPA claim (Count I) and an Unjust Enrichment claim (Count
II). Wanderu now seeks to dismiss the Complaint arguing that Plaintiff fails to state a claim under
FDUTPA because Wanderu is not subject to § 817.36’s $1.00 fee limitation, as Wanderu is not a
reseller of tickets; there are no allegations of deceptive practices or actual damages; and Plaintiff
fails to state a claim for unjust enrichment because there is an express contract between the parties
governing the subject matter, precluding Plaintiff from seeking equitable relief for the purportedly
excessive fees. See generally ECF No. [16].
Plaintiff responds that a plain reading of Fla. Stat. § 817.36 contemplates treating ticket
aggregators like Wanderu as resellers. See ECF No. [21] at 10-11. Accordingly, because Wanderu
is a reseller of common carrier tickets, its service fees in excess of $1.00 violate FDUTPA.
Furthermore, Plaintiff contends that it has adequately alleged that Wanderu engaged in deceptive
practices by labeling its services fees as both “Taxes and fees” and that he suffered actual damages
because Wanderu’s excessive fees decreased competition in the marketplace. See id. at 17, 23.
As for the unjust enrichment claim, Plaintiff maintains that the contract does not cover the
same subject matter and therefore does not prevent Plaintiff from seeking equitable relief. See id.
at 24. Moreover, even if the parties’ contract covered Plaintiff’s unjust enrichment claim, any
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provision permitting Wanderu to charge more than $1.00 in additional fees is illegal and therefore
unenforceable. See id.
II. 	LEGAL STANDARD
“On a Rule 12(b)(6) motion to dismiss, ‘[t]he moving party bears the burden to show that
the complaint should be dismissed.’” Sprint Sols., Inc. v. Fils–Amie, 44 F. Supp. 3d 1224, 1228
(S.D. Fla. 2014) (quoting Mendez–Arriola v. White Wilson Med. Ctr. PA, No. 09–495, 2010 WL
3385356, at *3 (N.D. Fla. Aug. 25, 2010)). A pleading in a civil action 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 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”). Nor can a complaint rest on “‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
557 (alteration in original)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). “Factual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. When a defendant moves to dismiss for failure to state a claim
upon which relief can be granted under Rule 12(b)(6), the court must accept the plaintiff’s
allegations as true and evaluate all possible inferences derived from those facts in favor of the
plaintiff. See Am. Marine Tech, Inc. v. World Grp. Yachting, Inc., 418 F. Supp. 3d 1075, 1079
(S.D. Fla. 2019). 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;
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see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Off., 449 F.3d 1342, 1352 (11th
Cir. 2006). “[T]he court may dismiss a complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual allegations
will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992
F.2d 1171, 1174 (11th Cir. 1993) (citations omitted).
III. 	DISCUSSION
A. FDUTPA Claim
a. 	Reseller Under FDUTPA
Wanderu argues that a plain reading of Fla. Stat. § 817.36 supports that the statute imposes
restrictions only on the resale of tickets, not original ticket sales. See ECF No. [16] at 7. Wanderu
maintains that it is not in the business of reselling tickets. Instead, Wanderu “aggregate[s] travel
providers’ offerings, allowing the consumer the opportunity to compare market offerings and then
make an original purchase of a ticket from the travel provider, via Wanderu’s website.” Id.
Wanderu asserts that “the fees, charges and/or taxes paid by the consumer are a direct pass-through
to the travel provider,” and that it simply “facilitates the reservation by offering a user interface to
make the reservation with the Travel Provider[.]” Id. at 8. As such, Wanderu merely retains the
“service charge assessed for using Wanderu’s aggregator services” while “the balance of the
purchase price is remitted to the travel provider.” Id. Accordingly, because Wanderu is not in the
business of reselling tickets, it argues that Fla. Sta. § 817.36 is inapplicable and may not serve as
a basis for a claim under FDUTPA.
Plaintiff responds that Wanderu does resell tickets because it aggregates tickets that are for
sale on other sites and then offers them for sale “again” on its site. ECF No. [21] at 10. According
to Plaintiff, the “plain meaning of the term ‘resell’ encompasses third-party aggregators like
Wanderu,” as courts have rejected the theory that, for a party to “resell something, one must
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purchase it first.” Id. (quoting Util. Cost Mgmt., LLC v. Freeman Expositions, Inc., 2016 WL
9343761, at *4 (C.D. Cal. Apr. 8, 2016) (internal quotations omitted)).
Plaintiff points out that § 817.36 does not define “the terms ‘offer for resale,’ ‘resell,’ or
‘reseller,’” and therefore, the Court must engage in statutory interpretation to determine the
meaning of those terms. See id. at 11. According to Plaintiff, the Court need only apply the plain
and ordinary meaning of the words “resell” and “resale” to find that the statute covers
“intermediaries that facilitate transactions like Wanderu [offers].” Id. To support that the term
“reseller” should apply to Wanderu, Plaintiff explains Wanderu’s business as follows:
[B]us and train tickets are first “offered for sale” from the common carrier’s
website. After those tickets are initially offered for sale, Wanderu’s “metasearch
engine aggregat[es] prices and available offerings . . . ‘from hundreds of travel
companies.’” Mot. at 3. Wanderu then offers for sale those very same tickets again
on its own website—[ ] at an inflated price. . .. In other words, [ ] the initial ticket
listing on [the common carrier’s] website is the first sale, and the subsequent
aggregation and duplication of the ticket listing on the Wanderu website is the
resale—i.e., “the act of selling again.” Dickenson, 353 F.2d at 395.
Id. Given Wanderu’s business model, Plaintiff contends the company is properly
categorized as a reseller under the statute.
Plaintiff maintains the interpretation of the terms “resell” and “resale” is consistent with
other provisions in § 817.36. Section 817.36 specifically carves out certain enumerated industries
and entities from the $1.00 resale limitation. Those excluded groups include (1) certain travel
agencies,3 (2) online resellers who are authorized by the original ticket seller to resell the tickets,
and (3) online resellers who disclose they are not the issuer or original seller of the ticket. Because
3 To be an exempted travel agency, the agency must have an established place of business in Florida, and
must be subject to Florida state, county, and city occupational license taxes.
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there is no exception for online ticket aggregators, Plaintiff insists that it must necessarily follow
that entities like Wanderu are resellers subject to the $1.00 fee limitation.4
As the parties agree that a plain reading of the terms “resell” and “resale” are outcome
determinative as to whether Wanderu is subject to Fla. Stat. § 817.36, and those terms are not
defined in the statute, the Court engages in statutory interpretation to determine the meaning of
those terms. The Court presumes that the legislature “says in a statute what it means and means in
a statute what it says.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992). Therefore,
[t]he first rule in statutory construction is to determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute.” United States v. Silva, 443 F.3d
795, 797-98 (11th Cir. 2006); see In re Robb, 669 B.R. 839, 843 (Bankr. S.D. Fla. 2025) (“Courts
interpreting statutory text must begin—and, if possible, end—with the plain meaning of the
statute.”). Where “the statute’s language is plain, the sole function of the courts—at least where
the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (internal quotation and
citation omitted). So long as the language is not ambiguous, no further inquiry is necessary. See
Silva, 443 F.3d at 797. Even when a statutory term is undefined, “the plain meaning of the text
[generally] controls.” United States v. Dawson, 64 F.4th 1227, 1236 (11th Cir. 2023).
One of the ways to determine the meaning of an undefined statutory term is to look to
dictionaries. United States v. Dawson, 64 F.4th 1227, 1236 (11th Cir. 2023). Merriam-Webster
Dictionary defines a “resale” as “the act of selling again usually to a new party.” Resale, Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/resale (last accessed January
4 Plaintiff also makes a public policy argument suggesting that if the Court finds that Wanderu is not a
reseller under the § 817.36, the Court would undermine the statute by allowing Wanderu to reap the benefits
of operating as a travel agency while not paying the state, county, and city taxes that a brick and mortar
travel agency is required to pay in order to charge fees in excess of $1.00. See ECF No. [21] at 15-16.
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30, 2026). Black’s Law Dictionary defines the term “resale” as “a retailer’s selling of goods,
previously purchased[,] to consumers or to someone else further down the chain of distribution.”
Resale, Black’s Law Dictionary (12th ed. 2024) (emphasis added). Similarly, the term “resell”
means “to sell something one has previously bought” or to “sell again.” Resell, Oxford English
Dictionary, Oxford UP, September 2025, https://doi.org/10.1093/OED/4808965302; Resell,
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/resale (last accessed
February 3, 2026); Resell, Dictionary.com, https://www.dictionary.com/browse/resell (last visited
February 3, 2026). The definitions Plaintiff offers for these terms are virtually the same as those
in the dictionaries identified. Plaintiff asserts that “[t]he common meaning of resale is the act of
selling again,” while the “definition of the word resell is to sell again.” ECF No. [21] at 11 (internal
citations and quotations omitted). As is evident by each of these definitions, for an entity to resell
goods, the goods must have been previously sold.5 Indeed, the prefix “re” literally means to do
again. Thus, without an initial sale, the goods cannot be sold again as the selling of previously
unsold goods would simply be an initial sale.
Despite the ordinary meaning of the term, Plaintiff argues that Wanderu “resells” tickets
that the common carriers first “sell” on their own websites. For Plaintiff to be correct that Wanderu
resells tickets, Wanderu would first have to purchase the tickets from the common carriers;
otherwise, the carriers would simply be offering to sell6 rather than selling the tickets. Wanderu,
however, merely provides an aggregation service where it lists tickets available for purchase across
5 The only case Plaintiff cites to support his contention to the contrary is a federal district court decision in
California involving an unrelated issue. See ECF No. [21] at 10 (citing Util. Cost Mgmt., LLC v. Freeman
Expositions, Inc., 2016 WL 9343761, at *4 (C.D. Cal. Apr. 8, 2016)).
6 To sell something is “to transfer goods to or render (services for another in exchange for money; dispose
of to a purchaser for a price.” Sell, Dictionary.com, https://www.dictionary.com/browse/sell (last accessed
February 3, 2026).
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carriers. The fact that Wanderu technically offers the tickets for sale only after they are made
available on a common carrier’s website does not mean Wanderu is reselling those tickets, as
Wanderu does not purchase those tickets. Except for the service fee Wanderu charges for its
aggregation service, all other “fees, charges, and/or taxes paid by the consumer are a direct pass-
through to the travel provider.” ECF No. [16] at 8.7 “The Wanderu Service only facilitates the
reservation by offering a user interface to make the reservation with the Travel Provider.” Id.
(quoting the disclosures on www.wanderu.com). Indeed, if a customer did not want to pay for the
benefits of Wanderu’s aggregation service, the customer could just as easily log onto the common
carrier’s website and buy the exact same ticket directly from the common carrier. Therefore,
because Wanderu and the common carrier are offering for sale the same original ticket at the same
time, and at no point does Wanderu purchase tickets before it posts those tickets on its website,
Wanderu is not selling the tickets “again.” Accepting Plaintiff’s interpretation of the terms resale
and resell would not only run contrary to the plain meaning of the words, but would lead to an
absurd result where an original seller would be subject to § 817.36 any time the original seller
made tickets available for purchase in more than one place at any given point in time.
As such, the Court finds that a plain reading of Fla. Stat. § 817.36 demonstrates that
Wanderu neither “offers for resale or resells” tickets for “[p]assage or accommodations on any
common carrier in this state.” Fla. Stat. § 817.36. Because the Court finds that the plain language
of the statute is dispositive, no further analysis is necessary or proper. See Birnholz v. 44 Wall St.
Fund, Inc., 880 F.2d 335, 341 (11th Cir. 1989), certified question answered, 559 So. 2d 1128 (Fla.
7 While Plaintiff disagrees with Wanderu’s characterization that it is a pass-through seller, Plaintiff agrees
that “consumers can buy bus or train tickets from common carriers like Red Coach, Greyhound, Flixbus,
AmTrack, or Jet Set Express” on Wanderu’s website. ECF No. [21] at 8. Therefore, it appears that Plaintiff
is simply quibbling over labels as opposed the nature of Wanderu’s business.
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1990). Therefore, since the plain meaning of resale and resell does not cover tickets offered for
sale on search aggregator websites, Wanderu is not subject to § 817.36, and consequently,
Plaintiff’s allegation that Wanderu charges service fees more than $1.00 over the original ticket
price is insufficient to plausibly establish a FDUTPA violation.
b. 	Deceptive Practices and Actual Damages Under FDUTPA
Wanderu argues that Plaintiff’s allegations of deceptive fees do not plausibly establish a
FDUTPA claim either. Wanderu explains that a viable FDUTPA claim requires a showing of “1)
a deceptive act or unfair trade practice; 2) causation; and 3) actual damages. ECF No. [16] at 8. To
satisfy the first element, Wanderu contends that a plaintiff must establish that there was a
“representation, omission, or practice that [ ] likely [ ] misle[d] the consumer acting reasonably in
the circumstances, to the consumer’s detriment.” Id. (quoting Zlotnick v. Premier Sales Grp., Inc.,
480 F.3d 1281, 1284 (11th Cir. 2007)). According to Wanderu, Plaintiff has not carried his burden
as to the deception element because Plaintiff does not “allege that the process of viewing pricing,
locations, and schedules for travel providers on Wanderu’s website, and then making a purchase
from a travel provider on Wanderu’s website, even incurring a service fee from Wanderu, was
likely to mislead a reasonable consumer.” Id. at 9. Wanderu points out that where a defendant has
provided accurate pricing information about a transaction (as is the case here), a reasonable
consumer would not overlook such information and, as such, any claim of deception is rebutted.
Wanderu further argues that Plaintiff has not adequately alleged the actual damages
element because Plaintiff has not established “that the market value of the product delivered was
less than the value of the product as it should have been delivered according to the contract of the
parties.” Id. Wanderu maintains that there is no contention that Plaintiff did not receive exactly
what he paid for when he purchased his ticket on Wanderu’s website. Accordingly, there is no
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factual basis to plausibly believe Plaintiff was injured, as he received the benefit of the bargain.
Id.
Plaintiff responds that he has satisfied the deception element by alleging that Wanderu
claims to charge “Taxes and fees” while never charging the customer any tax. By never giving the
customer a breakdown of the fees, Plaintiff contends the ambiguity creates a “net impression” that
at least some of the taxes and fees include charges from the government, rather than just a service
fee from Wanderu. ECF No. [21] at 18.
As for the actual damages issue, Plaintiff contends that he need not show that the market
value of the product delivered was less than the value of the product as it should have been
delivered, as that is just one means of demonstrating actual damages, not the exclusive one. Id. at
23. Plaintiff argues he may show actual damages by alleging that a defendant’s misrepresentations
artificially inflated the market price by reducing price competition from other companies that sell
the same products or services. Id.
The Court finds that, even assuming Wanderu’s labeling of its service fee charge as “Taxes
and fees” constituted a deceptive practice, Plaintiff has failed to adequately allege actual damages
necessary to establish his FDUTPA claim. Plaintiff cites to out-of-circuit federal district court
decisions to argue that actual damages need not only be established by showing that “the market
value of the product delivered was less than the value of the product as it should have been
delivered.” See id. (citing Carovillano v. Sirius XM Radio Inc., 715 F. Supp. 3d 562, 581-82
(S.D.N.Y. 2024); Mansfield v. StockX LLC, 802 F. Supp. 3d. 1143, 1152-53 (N.D. Cal. 2025)).
However, Plaintiff completely ignores Florida case law addressing the specific statute in question.
“In the context of FDUTPA, ‘actual damages’ are defined as ‘the difference in the market value
of the product or service in the condition in which it was delivered and its market value in the
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condition in which it should have been delivered according to the contract of the parties.’”
Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178, 180 (Fla. 3d DCA 2010)
(quoting Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984) and citing Urling v.
Helms Exterminators, Inc., 468 So.2d 451, 454 (Fla. 1st DCA 1985)); Baptist Hosp., Inc. v. Baker,
84 So. 3d 1200, 1204 (Fla. 1st DCA 2012) (same). Thus, if a plaintiff cannot show that he or she
has been denied the benefit of the bargain, the plaintiff’s FDUTPA claim necessarily fails. See
Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019). Here, there is no
allegation that Plaintiff did not get the full benefit of the bargain. Not only did Plaintiff receive the
ticket he intended to purchase, see ECF No. [1] at ¶ 13, but he also received the benefit of using
Wanderu’s aggregation services when he selected his ticket. Plaintiff provides no allegations
suggesting that he paid for a good or service that he did not receive. Indeed, the only purported
harm is that Wanderu represented to Plaintiff that he would have to pay taxes and fees on the ticket,
but he was only charged a service fee. Those allegations plainly do not establish the actual damages
element and, as such, Plaintiff’s FDUTPA claim must be dismissed.
c. 	Shotgun Pleading
Even if Plaintiff had adequately alleged that Wanderu engaged in deceptive practices
sufficient to establish a FDUTPA claim, Plaintiff’s claim would still need to be dismissed on
shotgun pleading grounds.8
“A complaint that fails to articulate claims with sufficient clarity to allow the defendant to
frame a responsive pleading [violates Rule 8(a)(2) and] constitutes a ‘shotgun pleading.’”
Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x. 274, 277 (11th Cir. 2008) (quoting Byrne
v. Nezhat, 261 F.3d 1075, 1128-29 (11th Cir. 2001)). Such unclear pleadings “exact an intolerable
8 A “District Court retains authority to dismiss a shotgun pleading on that basis alone.” Jackson v. Bank of
Am., N.A., 898 F.3d 1348, 1358 (11th Cir. 2018).
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toll on the trial court’s docket, lead to unnecessary and unchanneled discovery, and impose
unwarranted expense on the litigants, the court and the court’s parajudicial personnel and
resources.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356 (11th Cir. 2018) (quoting Cramer
v. Fla., 117 F.3d 1258, 1263 (11th Cir. 1997)). As such, “Courts in the Eleventh Circuit have little
tolerance for shotgun pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir.
2018)
The Eleventh Circuit has identified four types of shotgun pleadings, the “unifying
characteristic” of which being that all shotgun pleadings “fail . . . to give the defendants adequate
notice of the claims against them and the grounds upon which each claim rests.” Weiland v. Palm
Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015). The first and “most common
type” of shotgun pleading “is a complaint containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count to carry all that came before and
the last count to be a combination of the entire complaint.” Id. at 1321. The second type of shotgun
pleading is the complaint that is “guilty of the venial sin of being replete with conclusory, vague,
and immaterial facts not obviously connected to any particular cause of action.” Id. at 1322. Third
is the pleading “that commits the sin of not separating into a different count each cause of action
or claim for relief.” Id. at 1323. Fourth is the pleading that asserts “multiple claims against multiple
defendants without specifying which of the defendants are responsible for which acts or omissions,
or which of the defendants the claim is brought against.” Id.
Here, Plaintiff commits the third sin—commingling multiple causes of action into a single
claim. While Plaintiff contends that he is only asserting one FDUTPA claim, he combines two
unrelated theories of liability into one cause of action. See, e.g., Coney v. Royal Caribbean Cruises,
Ltd., No. 22-CV-24003, 2023 WL 12148531, at *2 (S.D. Fla. July 28, 2023) (finding that “an
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‘attempt[ ] to cram multiple, distinct theories of liability into one claim,’ . . . qualif[ied] as a
shotgun pleading.” (quoting Ortiz v. Carnival Corp., No. 20-24838-CIV, 2020 WL 6945958, at
*2 (S.D. Fla. Nov. 25, 2020)). Plaintiff’s theory of liability based on deceptive charging practices is a
completely different theory than the one based on the overcharging of customers. Indeed, Plaintiff concedes
as much. See ECF No. [1] at ¶ 8 (“Wanderu’s other practice of hiding its fees in a ‘taxes and fees’ line-item
is also independently a deceptive trade practice under FDUPTA[.]”). Therefore, although both theories of
liability are based on purported FDUTPA violations, they are distinct causes of action that must be plead
in separate counts. If Plaintiff seeks to file an amended complaint, he must separately plead his
FDUTPA claims.
B. Unjust Enrichment Claim
Wanderu also moves to dismiss Plaintiff’s Unjust Enrichment claim. Wanderu points out
that “[u]njust enrichment is an equitable remedy only available in the absence of any legal
remedy.” ECF No. [16] at 10. Therefore, where an express contract exists that would entitle the
plaintiff to money damages, the plaintiff is foreclosed from pursuing an equitable remedy such as
unjust enrichment or quantum meruit. Accordingly, because the Complaint establishes that an
express contract exists between the parties, Plaintiff’s unjust enrichment claim necessarily fails.
Id. at 11.
Plaintiff responds that his acceptance of the “Terms and Conditions” did not create an
express contract governing the subject matter in this case. ECF No. [21] at 24. Plaintiff argues that
his “unjust enrichment claim is predicated on the fact that the fees Wanderu charged ‘exceeded
$1.00 beyond the total amount of the ticket[,]’” whereas Wanderu’s Terms and Conditions simply
provides “that ‘Wanderu may charge a service fee,’ and that ‘this service fee may vary.’” Id.
(quoting 	Terms 	& 	Conditions, 	WANDERU, 	https://www.wanderu.com/enus/terms-and-
conditions/ (updated May 28, 2019)). Therefore, because the Terms and Conditions provision does
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not provide the precise amount the Wanderu’s service fee would cost, Plaintiff maintains the
contract does not foreclose an unjust enrichment claim based on Wanderu’s allegedly misleading
fee disclosures. See id.
Furthermore, even if the Terms and Conditions did adequately cover the subject matter
raised by Plaintiff in his Unjust Enrichment claim, Plaintiff argues that Wanderu may not convert
an otherwise illegal fee into a legal one by way of contract. See id. According to Plaintiff, because
Fla. Stat. § 817.36 sets a $1.00 fee cap, any fee charged in excess of $1.00 is still illegal regardless
of whether the parties have entered a contract stipulating otherwise. Therefore, the Court “ought
not to enforce the illegal term[.]” Id.
As Wanderu correctly points out, unjust enrichment is an equitable claim that is only
available where an express contract concerning the same subject matter does not exist. See e.g.,
Doral Collision Ctr., Inc. v. Daimler Tr., 341 So. 3d 424, 430 (Fla. 3d DCA 2022) (“[I]t is well
settled that a plaintiff ‘cannot pursue an equitable theory, such as unjust enrichment or quantum
meruit, to prove entitlement to relief if an express contract exists.”’) (quoting Fulton v. Brancato,
189 So. 3d 967, 969 (Fla. 4th DCA 2016)); Zarrella v. Pac. Life Ins. Co., 755 F. Supp. 2d 1218,
1227 (S.D. Fla. 2010) (“No cause of action in unjust enrichment can exist where the parties’
relationship is governed by an express contract.”). Here, there is no dispute that an express contract
exists between the parties—i.e., the Terms and Conditions.9 Therefore, the only question is
whether the Terms and Conditions covers the subject matter at issue in Plaintiff’s Unjust
Enrichment claim.
9 To purchase a ticket utilizing Wanderu’ website, the purchaser must first affirmatively check a box
accepting Wanderu’s Terms and Conditions. See ECF No. [16] at 11. As such, the Terms and Conditions
are necessarily a part of the contract.
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The Court rejects Plaintiff’s argument that the Terms and Conditions portion of the parties’
contract does not cover the subject matter at issue here simply because the Terms and Conditions
do not include the precise amount Wanderu charges as a fee. The Terms and Conditions clearly
cover Wanderu’s service fees. Plaintiff concedes that the Terms and Conditions states that
“Wanderu may charge a service fee,” and that “[t]his service fee may vary.” Id. at 24. Plaintiff
fails to explain why it is significant that there is no sum certain rate included. While Plaintiff insists
that this Court adopted the same rationale for denying a motion to dismiss in Fruitstone v. Spartan
Race, Inc., 464 F. Supp. 3d 1268 (S.D. Fla. 2020), that case is clearly distinguishable. In
Fruitstone, there was no dispute that the waiver contained the terms and conditions of the parties’
contract. This Court ultimately allowed the unjust enrichment claim to proceed because the fee
provision was not incorporated into the waiver and it was unclear whether the fee language was
considered a part of the waiver itself. See id. at 1291. Here, however, there is no dispute that the
fee provision is part of the Terms and Conditions. See ECF No. [21] at 21. Indeed, Plaintiff
concedes as much. See id. Accordingly, Fruitstone does not alter the Court’s conclusion that the
parties’ contract in this case concerns the same subject matter as Plaintiff’s instant unjust
enrichment claim.
Plaintiff’s argument that the parties’ contract is not enforceable because it contains an
illegal term fares no better. Plaintiff’s theory that the fee provision is illegal hinges on the
assumption that Wanderu is a reseller who may not charge more than $1.00 over the original ticket
price under § 817.36. However, because the Court had already determined that Wanderu is not a
ticket reseller and is therefore not subject to § 817.36, Wanderu’s fees do not violate the statute
and are therefore not illegal. Accordingly, the Terms and Conditions Plaintiff accepted when he
purchased his ticket forecloses him from seeking an equitable remedy here.
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IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	Wanderu’s Motion to Dismiss, ECF No. [16], is GRANTED.
2. 	Plaintiff’s Complaint, ECF No. [1], is DISMISSED WITHOUT PREJUDICE.
3. 	Plaintiff shall file an Amended Complaint no later than February 19, 2026. If Plaintiff
fails to file an Amended Complaint by the stated deadline, the Clerk of Court shall
close this case.
DONE AND ORDERED in Chambers at Miami, Florida, on February 5, 2026.
_________ _______________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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