Bur-Tex Hosiery, Inc. v. Guardiola et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-24723-CIV-ALTONAGA/Reid
BUR-TEX HOSIERY, INC.; et al.,
Plaintiffs,
v.
ALEJANDRO GUARDIOLA, et al.,
Defendants.
________________________________/
ORDER
THIS CAUSE came before the Court on Defendant, Alejandro Guardiola’s Motion to
Dismiss [ECF No. 63]. 	Plaintiffs, Bur-Tex Hosiery, Inc. and INOV8 Marketing, LLC filed a
Response [ECF No. 67]; to which Guardiola filed a Reply [ECF No. 68]. The Court has considered
the parties’ submissions and applicable law. For the following reasons, the Motion is granted.
I. BACKGROUND
Plaintiffs, INOV8 Marketing, LLC (“INOV8”) and Bur-Tex Hosiery, Inc. (“Bur-Tex”) —
the sole member of INOV8 — sought to procure and sell medical gloves during the COVID-19
pandemic. (See Second Amended Compl. (“SAC”) [ECF No. 26] ¶¶ 1–2). Defendants, Alejandro
Guardiola and Elizabeth Labellarte, operated Blue Avian Ventures LLC (“Blue Avian”), a now-
dissolved Florida company that purported to sell medical gloves. (See id. ¶¶ 4, 9). Guardiola was
Blue Avian’s sole member. (See id. ¶ 3).
In November 2020, INOV8, acting as Bur-Tex’s purchasing agent, contracted with
“Defendants (through Blue Avian)” to purchase nitrile gloves on behalf of Bur-Tex’s customer,
Cintas Corporation (“Cintas”). (Id. ¶¶ 13–14). Nitrile is a high-quality material that commands a
substantially higher price than non-nitrile gloves. (See id. ¶ 10).
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In late November 2020, after learning of Bur-Tex’s need for nitrile gloves, Defendants —
“either jointly, or with one acting as the designated agent and co-conspirator of the other” — sent
INOV8 photos of boxes labeled “Durable Nitrile Disposable Gloves” and represented in an email
or text message that the gloves were made of nitrile, despite knowing they were not. (Id. ¶ 14; see
also id. ¶¶ 11–12). Relying on those representations, Plaintiffs purchased 18,290 boxes of gloves
from Blue Avian at a cost of almost $15 per box — a high price that Plaintiffs accepted because
they believed the gloves were nitrile. (See id. ¶¶ 15–16).
Defendants shipped the gloves to Cintas in December 2020. (See id. ¶ 17). Weeks later,
Cintas discovered the gloves were not made of nitrile and returned them to Bur-Tex, which
refunded Cintas the purchase price of $271,606.00. (See id. ¶¶ 17–18). Plaintiffs identify the lost
purchase price, storage expenses, and “other significant related losses” as damages. (Id. ¶ 18).
In the SAC, Plaintiffs assert a single claim of fraud (Count I). 	(See id. ¶¶ 32–38).1 On
May 16, 2025, after Defendants failed to respond to the SAC or otherwise appear and the Clerk
entered Defaults [ECF Nos. 35, 42] against Defendants, Plaintiffs filed a Motion for Final Default
Judgment [ECF No. 44]. 	On June 6, 2025, the Court granted the motion, finding Defendants
jointly and severally liable for the sum of $318,246; and entered Final Judgment [ECF No. 50] in
favor of Plaintiffs on Count I of the SAC. 	(See generally June 6, 2025 Order [ECF No. 49];
Final J.). Subsequently, Guardiola appeared and filed a Motion to Vacate [the] . . . Final Judgment
[ECF No. 54]. The Court set aside the Final Judgment. (See Oct. 2, 2025 Order [ECF No. 61] 6).2
1 Bur-Tex initially sued INOV8 in October 2022 over the failed medical-gloves deal. (See SAC ¶ 19). In
February 2025, Bur-Tex resolved its claims against INOV8 and acquired the company, “becoming its sole
member, and inheriting . . . the right to sue for past fraud against [INOV8].” (Id. (alterations added)).
2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings.
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Guardiola now moves to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(6),
arguing that the independent tort doctrine and Uniform Commercial Code (“UCC”), Florida
Statute section 672.102, bar the fraud claim; and Plaintiffs do not state a plausible or sufficiently
particularized claim under Federal Rule of Civil Procedure 9(b).3 (See generally Mot.). According
to Plaintiffs, neither the independent tort doctrine nor UCC applies because the fraud claim is not
based on a contractual breach. (See Resp. 9–12). Plaintiffs further assert they adequately plead a
fraud claim. (See id. 3–8).
II. LEGAL STANDARDS
Rule 12(b)(6). 	“To survive a motion to dismiss [under Federal Rule of Civil Procedure
12(b)(6)], 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) (alteration added;
quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard
“does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Id. (alteration added; quoting Twombly, 550 U.S.
at 555). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do[.]” 	Twombly, 550 U.S. at 555 (alteration added;
citation omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (alteration added; citing Twombly, 550 U.S. at 556).
3 While Guardiola also “incorporates” arguments he made in prior filings (Mot. 1), the Court considers only
those arguments made in the Motion and Reply. “No federal rule allows a party to incorporate one motion,
or even a portion thereof, into another motion.” Stansell v. Revolutionary Armed Forces of Columbia [sic],
No. 19-20896-Civ, 2019 WL 10377538, at *1 n.1 (S.D. Fla. Mar. 28, 2019) (citations omitted); see also
Dyer v. Wal-Mart Stores, Inc., No. 08-cv-747, 2010 WL 11474400, at *2 (M.D. Fla. Aug. 6, 2010) (“In
general, in ruling on a motion to dismiss, the Court considers only the allegations within the [c]omplaint,
and the arguments within the motion to dismiss and response.” (alteration added)).
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To meet this “plausibility standard,” a plaintiff must “plead[] factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678 (alteration added; citing Twombly, 550 U.S. at 556). “The mere possibility the defendant
acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252, 1261 (11th Cir. 2009) (citing Iqbal, 556 U.S. at 678), abrogated on other grounds
by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012). When considering a motion to dismiss, a
court must construe the complaint “in a light most favorable to the plaintiff” and take its factual
allegations as true. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th
Cir. 1997) (citation omitted).
Rule 9(b). “Claims that sound in fraud must comply not only with the plausibility standard
articulated in Twombly and Iqbal, but also the heightened pleading requirements of Rule 9(b).”
Young v. Grand Canyon Univ., Inc., 57 F.4th 861, 875 (11th Cir. 2023) (citation omitted). As the
Eleventh Circuit recently explained,
Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were
made in what documents or oral representations or what omissions were made, and
(2) the time and place of each such statement and the person responsible for making
(or, in the case of omissions, not making) same, and (3) the content of such
statements and the manner in which they misled the plaintiff, and (4) what the
defendants obtained as a consequence of the fraud.
Id. at 875–76 (quoting Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 972 (11th Cir. 2007)).
Where, as here, a fraud action includes multiple defendants, a complaint must contain specific
allegations as to each defendant; “generalized allegations lumping multiple defendants together
are insufficient.” W. Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App’x
81, 86 (11th Cir. 2008) (citations and quotation marks omitted); see also Brooks v. Blue Cross &
Blue Shield of Fla., Inc., 116 F.3d 1364, 1381 (11th Cir. 1997) (same).
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III. DISCUSSION
The Court begins by considering the applicability of the independent tort doctrine and UCC
and then turns to Guardiola’s argument that Plaintiffs fail to state a plausible or sufficiently
particularized claim against him.
Independent Tort Doctrine and UCC. Guardiola contends Plaintiffs’ fraud claim is barred
by the independent tort doctrine, which provides that “a plaintiff may not recover in tort for a
contract dispute unless the tort is independent of any breach of contract.” La Dolfina S.A., LLC v.
Meeker, No. 20-82231-Civ, 2022 WL 6507718, at *9 (S.D. Fla. Aug. 19, 2022) (citation and
quotation marks omitted); (see also Mot. 5–7). Plaintiffs maintain the independent tort doctrine
does not apply because they allege Guardiola’s misrepresentation induced them to enter a contract
— rendering the fraud claim independent of any contractual breach. (See Resp. 9–12).
Guardiola fails to persuade that the independent tort doctrine or UCC applies. (See Mot.
5–7). Generally, a fraud claim based on a misrepresentation that allegedly induces a plaintiff to
enter a contract is not barred by the doctrine. See MidAmerica C2L Inc. v. Siemens Energy Inc.,
No. 24-10678, 2025 WL 1807982, at *9 (11th Cir. July 1, 2025) (citation omitted). Similarly, a
fraud claim based on misrepresentations about “present circumstances that predated [a] contract”
is generally not barred by the doctrine. 	Yuken Corp. v. Gedcore LLC, No. 22-20661-Civ, 2022
WL 3701233, at *5 (S.D. Fla. June 21, 202 (alteration added; citing Prewitt Enters., LLC v. Tommy
Constantine Racing, LLC, 185 So. 3d 566, 570 (Fla. 4th DCA 2016))). 	Such is the case here.
Because Plaintiffs’ fraud claim is based on a representation about “present circumstances” that
predated any contract — the nature of Blue Avian’s Durable Nitrile brand gloves — the
independent tort doctrine appears not to apply. Id. (citation omitted); (see generally SAC).
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Guardiola also argues that the UCC applies because Plaintiffs’ fraud claim arises from a
sale of goods; and Plaintiffs’ failure to comply with a UCC requirement regarding notice of
nonconforming goods forecloses the claim. (See Mot. 5–7 (citing Fla. Stat. §§ 672.102, 672.601,
672.607(3)(a); other citations omitted)). 	Plaintiffs insist the UCC notice requirement is
inapplicable because Guardiola knew the gloves were not nitrile when he shipped them to Cintas.
(See Resp. 9–12).
As with Guardiola’s independent-tort-doctrine argument, his UCC argument fails because
Plaintiffs’ fraud claim is not premised on an alleged breach of contract. 	(See generally SAC).
Under section 671.607, Florida Statutes, a buyer in receipt of nonconforming goods must notify
the seller of an alleged “breach” within a reasonable time “or be barred from any remedy” for a
breach of express or implied warranty. Id.; see also Matus v. Sport Squad, No. 24-cv-60954, 2024
WL 5135678, at *4 & n.2 (S.D. Fla. Dec. 17, 2024) (explaining that section 671.607 applies to
breach of warranty claims (citations omitted)). 	Because Guardiola fails to show that Plaintiffs’
fraud claim is based on a breach of express or implied warranties in a contract — and offers no
argument or authorities supporting the position that section 671.607 applies to fraud claims — the
Court is not convinced the notice requirement applies to Plaintiffs’ claim.4
Failure to State a Fraud Claim. 	Next, the Court evaluates Guardiola’s argument that
Plaintiffs’ allegations are insufficient to state a fraud claim. To plead fraud under Florida law, a
plaintiff must allege that (1) a defendant made a false statement of fact, knowing it was false, to
4 Nor does Guardiola explain why the notice requirement — which is “intended to give the seller an
opportunity to inspect the defected product and cure any breach prior to the initiation of litigation” —
should apply given that Plaintiffs allege Defendants knowingly misrepresented the nature of the gloves.
Fineman v. Ferragamo USA Inc., 672 F. Supp. 3d 1302, 1307 (S.D. Fla. 2023) (citation omitted), appeal
dismissed, No. 23-11987-A, 2023 WL 5939033 (11th Cir. July 19, 2023); (see SAC ¶¶ 14, 34; see generally
Mot.; Reply); see also, e.g., Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003, 1009
(2d Cir. 1991) (explaining a party may generally be excused from a contractual notice requirement that
would be a mere useless gesture (citation omitted)).
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induce the plaintiff to act in reliance on the statement; and (2) the plaintiff acted in reliance on the
statement, sustaining damage as a result. See Pharma Holdings US, Ltd. v. Meds Direct RX of NY,
LLC, No. 16-Civ-60095, 2016 WL 11819530, at *7 (S.D. Fla. May 10, 2016) (citation omitted).
Guardiola argues that Plaintiffs fail to state a fraud claim against him because they do not
allege that he made a false statement or otherwise engaged in conduct supporting such a claim;
instead, they offer vague allegations directed at both Defendants. (See Mot. 3–5). Plaintiffs insist
that the SAC sufficiently alleges Guardiola’s own fraudulent conduct — and, alternatively, that
the claim survives because Plaintiffs plead a conspiracy between the two Defendants. (See Resp.
8). 	The Court agrees the SAC lacks the factual grounding and specificity necessary to state a
claim.
As Guardiola notes, Plaintiffs do not allege that Guardiola communicated or interacted
with them — let alone that he made a misrepresentation to Plaintiffs in the context of a particular
document or conversation. (See Mot. 4–5; see generally SAC). In fact, other than the statement
that Guardiola was Blue Avian’s sole member — and unrelated allegations that he attempted to
evade service (see SAC ¶¶ 21–31) — the SAC is devoid of specific descriptions of Guardiola’s
conduct or statements (see generally id.).
At most, Plaintiffs allege that Guardiola and Labellarte either (1) jointly sent photos of the
boxes of gloves to Plaintiffs on November 25, 2020 by “email or text[,]” despite knowing the
boxes misrepresented the gloves as nitrile; or acted as co-conspirators, with one of the two
Defendants sending images. (Id. ¶ 14 (alteration and emphasis added); see also id. ¶ 34). These
allegations are inadequate to plead that Guardiola is liable for fraud, directly or as a co-conspirator.
Regarding direct liability, alleging that Guardiola may have sent misleading photos shows
only the “mere possibility” that he personally engaged in fraudulent conduct. 	Sinaltrainal, 578
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F.3d at 1261 (11th Cir. 2009) (citation omitted). 	To the extent Plaintiffs allege Guardiola and
Labellarte “jointly” sent photos, the SAC does not satisfy Rule 9(b), which requires specific
allegations of who made a false statement, rather than “generalized allegations lumping multiple
defendants together[.]” W. Coast Roofing & Waterproofing, Inc., 287 F. App’x at 86 (alteration
added; citation omitted); see also Haskin v. R.J. Reynolds Tobacco Co., 995 F. Supp. 1437, 1440
(M.D. Fla. 1998) (dismissing fraud claim for failure to satisfy Rule 9(b) where the plaintiff failed
to “differentiate between defendants”).
Nor do Plaintiffs’ co-conspirator allegations suffice. 	Plaintiffs do not plead a claim of
conspiracy to commit fraud, as would be required for a claim premised on co-conspirator liability.
(See generally SAC); see also, e.g., Wu v. Sagrista, No. 19-81203-Civ, 2020 WL 13539900, at *1
(S.D. Fla. Jan. 22, 2020) (treating civil conspiracy to commit fraud and fraud as distinct claims);
Principal Life Ins. Co. v. Mosberg, No. 09-22341-Civ, 2010 WL 473042, at *6 (S.D. Fla. Feb. 5,
2010) (explaining that a claim of conspiracy to commit fraud, requires an agreement to engage in
fraud (citations omitted)). Even if Plaintiffs had pleaded a conspiracy claim, they would still have
needed to comply with Rule 9(b) by pleading the specifics of any agreement between Guardiola
and Labellarte — which Plaintiffs do not. (See generally SAC); see also Am. United Life Ins. Co.
v. Martinez, 480 F.3d 1043, 1065 (11th Cir. 2007) (“[W]here a conspiracy claim alleges that two
or more parties agreed to commit fraud, the plaintiff must also plead this act with specificity”
(alteration added)).
IV. CONCLUSION
Accordingly, it is
ORDERED AND ADJUDGED that Defendant, Alejandro Guardiola’s Motion to Dismiss
. . . [ECF No. 63] is GRANTED. The Second Amended Complaint [ECF No. 26] is dismissed
without prejudice as against Guardiola. Plaintiffs, Bur-Tex Hosiery, Inc. and INOV8 Marketing,
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LLC have until December 22, 2025 to submit a third, and final, amended complaint; after which
no further amendment will be permitted.
DONE AND ORDERED in Miami, Florida, this 8th day of December, 2025.
_______________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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