MI-BOX of North Florida, LLC v. MI-BOX Holding Company et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
MI-BOX of North Florida, LLC,
Plaintiff
v. 	Case No. 24-cv-0253-SM-AJ
Opinion No. 2026 DNH 026
MI-BOX Florida, LLC,
Defendant
O R D E R
MI-BOX of North Florida (“MBNF”) originally filed this case
in the Florida state circuit court and it was removed to the
United States District Court for the Middle District of Florida.
Then, the defendant, MI-BOX Florida (“MI-BOX”), invoked a forum
selection clause in the parties’ contract and moved to transfer
the claims against it to this court. 	The district court in
Florida agreed and transferred the action here.
Pending before the court is MBNF’s motion for summary
judgment on three of the four remaining counts in its complaint:
violation of Florida’s Deceptive and Unfair Trade Practice Act
(count one), fraudulent inducement (count two), and rescission
(count four). 	As to those claims, MBNF asserts that there are
no genuinely disputed material facts and says it is entitled to
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judgment as a matter of law. 	Mi-Box objects. 	For the reasons
discussed, MBNF’s motion is denied.
Also pending is MI-BOX’s request for the re-opening of
discovery and other relief. 	See generally Fed. R. Civ. P.
54(d). 	That request is also denied.
Standard of Review
When ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party’s favor.” 	Block Island Fishing, Inc. v. Rogers,
844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). 	Summary
judgment is appropriate when the record reveals that there is
“no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 	Fed. R. Civ. P.
56(a). 	In this context, a factual dispute “is ‘genuine’ if the
evidence of record permits a rational factfinder to resolve it
in favor of either party, and ‘material’ if its existence or
nonexistence has the potential to change the outcome of the
suit.” 	Rando v. Leonard, 826 F.3d 553, 556 (1st Cir. 2016)
(citation omitted). 	When material facts are genuinely disputed,
such a dispute must be resolved by a trier of fact, not by the
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court on summary judgment. 	See, e.g., Kelley v. LaForce, 288
F.3d 1, 9 (1st Cir. 2002).
Background
According to the complaint, MI-BOX “is a business that
offers and sells distinctive storage and moving services,
featuring the use of proprietary lift systems, portable storage
boxes, as well as related products and services, all using
certain proprietary marks and a system.” 	Complaint (document
no. 9) at para. 6. 	In March of 2021, the parties signed a
“Dealership Agreement,” pursuant to which MI-BOX agreed to sell
and MBNF agreed to acquire “a MI-BOX Dealership within the State
of Florida.” 	MBNF also signed a “MI-BOX Equipment Purchase and
Trademark License Agreement” with a related entity (not a
defendant), which established the terms under which it would
purchase MI-BOX equipment and utilize MI-BOX trademarks and
service marks. 	The contract between MBNF and MI-Box is at issue
in this litigation.
MBNF’s claims turn largely on its assertion that although
the parties’ contract might suggest otherwise, it actually
purchased a MI-BOX “franchise” (rather than a “dealership”).
And, says MBNF, because it purchased a franchise, MI-BOX was
obligated (but failed) to comply with the pre-sale disclosure
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requirements of state and federal consumer protection laws
governing the sale of franchises. 	Moreover, says MBNF, the
documents that MI-BOX did provide were materially false and
misleading. 	MI-BOX, on the other hand, denies that it sold a
franchise to MBNF or that the contract at issue created a
franchisor-franchisee relationship between the parties. 	It also
denies that any of the documents it provided to MBNF were
materially false or misleading.
Finally, the court notes that the parties disagree on
another fundamental issue: whether the substantive law of New
Hampshire or Florida governs their dispute. 	Their contract
contains a choice of law provision which states that the
contract itself, as well as the parties’ rights and
responsibilities arising out of it, shall be interpreted in
accordance with New Hampshire law. 	Yet, MBNF advances two
statutory claims under Florida law. 	Resolving the choice-of-law
question is, then, potentially dispositive of at least some of
MBNF’s claims.
Preliminary Matters
I. 	Defendant is not Entitled to Relief under Rule 56(d).
Before addressing the substance of MBNF’s motion for
summary judgment, the court turns first to MI-BOX’s request for
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relief under Rule 56(d). 	MI-Box asserts that the court should
“deny or defer” summary judgment on grounds that it has not yet
had the opportunity to obtain necessary discovery. 	Despite that
claim, however, MI-BOX has objected to MBNF’s motion on
substantive grounds. 	Both this court and the court of appeals
have made clear that, generally speaking, such a request/tactic
is not permitted. 	See, e.g., C.B. Trucking, Inc. v. Waste
Mgmt., Inc., 137 F.3d 41, 44 (1st Cir. 1998) (“a party
ordinarily may not attempt to meet a summary judgment challenge
head-on but fall back on Rule 56(f) if its first effort is
unsuccessful.”);1 Morse v. TBC Retail Grp., Inc., No. 13-CV-65-
SM, 2013 WL 6730107, at *2–3 (D.N.H. Dec. 19, 2013) (“absent
unusual circumstances, a party cannot object (on substantive
grounds) to a pending motion for summary judgment, while also
seeking time for additional discovery if that objection proves
unavailing.”) (citations omitted). 	That MI-BOX has submitted a
substantive objection to MBNF’s motion for summary judgment is,
under the circumstances presented, a sufficient reason to deny
it relief under Rule 56(d).
1 	“Rule 56(d) was formerly Rule 56(f). 	This change in
nomenclature is unimportant; the textual differences between
current Rule 56(d) and former Rule 56(f) are purely stylistic.
Consequently, the case law developed under the earlier version
remains authoritative, and we refer to it where applicable.”
Jones v. Secord, 684 F.3d 1, 5 n.2 (1st Cir. 2012).
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But, even turning to the merits of MI-BOX’s motion, it must
necessarily be denied as insufficiently supported. 	As the court
of appeals has noted,
Rule 56(d) is not meant to clear the way for
additional discovery on demand. 	A party seeking
additional discovery must provide the court with:
a timely statement — if not by affidavit, then in
some other authoritative manner — that (i)
explains his or her current inability to adduce
the facts essential to filing an opposition, (ii)
provides a plausible basis for believing that the
sought-after facts can be assembled within a
reasonable time, and (iii) indicates how those
facts would influence the outcome of the pending
summary judgment motion.
We have characterized this showing as encompassing
five elements: authoritativeness, timeliness, good
cause, utility, and materiality.
Emigrant Residential LLC v. Pinti, 37 F.4th 717, 724–25 (1st
Cir. 2022) (quoting Vélez v. Awning Windows, Inc., 375 F.3d 35,
40 (1st Cir. 2004)) (emphasis supplied). 	Mi-Box’s request for
relief under Rule 56(d) fails to meet those requirements.
According to MI-BOX, “discovery remains open” and it
complains that it “has not yet been permitted to examine
Plaintiff or its principal.” 	Defendant’s Opposition (document
no. 67) at 2. 	See also Declaration of Edward Smith, Managing
Member of MI-BOX (document no. 67-1) at para. 17 (same). 	Yet,
neither of those statements is supported by the record.
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Discovery in this matter closed more than four months ago. 	See
Discovery Plan (document no. 58) at 3. 	Moreover, MBNF asserts -
without contradiction - that:
This case has been pending since August 2024. 	Since
then, Defendant has never noticed the deposition of a
single witness, including Plaintiff or any third-
party. 	Instead of moving swiftly to advise this Court
of the need for additional discovery after the Motion
[for Summary Judgment] was filed, Defendant waited
until its Response to first raise this issue.
Plaintiff’s Reply (document no. 68) at 2 (emphasis supplied).
MBNF also points out that MI-BOX never sought to extend the
(now-closed) discovery period nor did it notify the court of any
difficulties obtaining discovery. 	Id.
MI-BOX has failed to comply with the requirements of Rule
56(d) and neglected to show that it is entitled to the relief it
seeks. 	Consequently, its request for relief under Rule 56(d) is
necessarily denied.
II. 	Governing Law.
As noted above, MBNF brings two claims against MI-BOX
pursuant to Florida law. 	First, that MI-BOX violated Florida’s
Deceptive and Unfair Trade Practices Act, Fla. Stat.
§ 501.203(3); and, second, that MI-BOX violated Florida’s
Franchise Act, Fla. Stat. § 817.416(2)(a) (the latter statutory
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claim is not presently at issue). 	Pointing to the “Applicable
Law” provision of the contract, MI-BOX denies (without further
elaboration) that either Florida statute applies to the parties’
relationship, adding only that the “applicability of Florida’s
consumer protection statutes to a dealer relationship governed
by New Hampshire law is not self-evident and cannot simply be
presumed.” 	Defendant’s Opposition (document no. 67) at 11.
For its part, in support of its argument that Florida law
applies, MBNF relies solely on the claim that MI-BOX has
“waived” any argument against the application of Florida law by
its litigation conduct - that is, by failing to raise any
choice-of-law argument previously and by affirmatively relying
upon Florida law in support of its earlier motion to dismiss
MBNF’s claim under the Florida Business Opportunity Act. 	But,
like MI-BOX’s argument to the contrary, that assertion is also
entirely undeveloped.2
2 	Earlier in this litigation, MI-BOX moved to dismiss MBNF’s
claim under Florida’s Business Opportunity Act. 	It argued
persuasively (and successfully) that MBNF did not purchase a
“business opportunity,” as that term is defined in the Florida
Business Opportunity Act, Fla. Stat. § 559.801, et seq. 	See
generally Order Granting Defendant’s Motion to Dismiss (document
no. 56). 	MI-BOX did not, however, assert that the Florida
Business Opportunity Act was inapplicable under the contract’s
choice-of-law provision. 	That silence, says MBNF, amounts to a
“waiver” that now precludes MI-BOX from raising any choice-of-
law argument.
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Generally speaking, a court exercising diversity
jurisdiction applies the choice-of-law principles of the forum
state - here, New Hampshire. 	See Foisie v. Worcester
Polytechnic Inst., 967 F.3d 27, 41 (1st Cir. 2020) (citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).
Although it is not entirely clear whether that principle applies
in this case, see Meyer v. Callahan, No. 09-CV-106-PB, 2010 WL
4916563, at *1 n.1 (D.N.H. Nov. 29, 2010) (discussing choice-of-
law principles in the context of a case - like this one - that
has been transferred to a different district pursuant to 28
U.S.C. § 1404), the parties have assumed that New Hampshire
choice of law governs their dispute over whether Florida’s
consumer protection statutes are applicable to this case. 	They
have, then, waived (or, perhaps more accurately in this case,
forfeited) any argument that Florida’s choice-of-law provisions
apply.3
3 	See generally Van Dusen v. Barrack, 376 U.S. 612, 639
(1964) (“Where the defendants seek transfer, the transferee
district court must be obligated to apply the state law that
would have been applied if there had been no change of venue. 	A
change of venue under § 1404(a) generally should be, with
respect to state law, but a change of courtrooms.”).
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A. 	New Hampshire’s Choice-of-Law Principles.
In resolving choice-of-law questions, New Hampshire courts
follow the guidance set forth in the Restatement (Second) of
Conflict of Laws, § 187. 	Ordinarily then, New Hampshire courts
honor choice-of-law elections negotiated by contracting parties.
See, e.g., Hobin v. Coldwell Banker Residential Affiliates,
Inc., 144 N.H. 626, 628 (2000). 	Nevertheless, “under the
approach set forth in the Restatement (Second) of Conflict of
Laws, . . . the parties’ choice of law will not be honored when
applying the chosen law would be contrary to a fundamental
public policy of the state of the otherwise applicable law.” 	In
re Scott, 160 N.H. 354, 364 (2010) (emphasis supplied; citation
omitted). 	See generally Restatement (Second) of Conflict of
Laws, § 187.
Here, the “state of the otherwise applicable law” is
plainly Florida, given that MBNF originally filed suit there, as
well as Florida’s substantial contact with the substance of the
parties’ contract (MBNF’s MI-BOX franchise in Florida) and
Florida’s significant interest in protecting its resident (MBNF)
under the scope of its consumer protection laws. 	New
Hampshire’s connection to the formation, execution, and
enforcement of the parties’ contract is more limited, based
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largely on the fact that MI-BOX is a New Hampshire-based limited
liability company.
Through the statutes at issue here, Florida has expressed
its public policy of protecting consumers who purchase
franchised business opportunities. 	New Hampshire lacks any such
specific consumer protection laws. 	Consequently, applying New
Hampshire law would run afoul of Florida public policy. 	Under
New Hampshire’s choice-of-law principles, then, Florida law
applies at least to MBNF’s claims arising under Florida’s
consumer protection statutes.
B. 	The Parties’ Choice-of-Law Agreement.
The parties’ choice-of-law provision does not dictate
otherwise. 	That provision is set forth in Article IV, Section
4.6 of the contract and provides as follows:
Applicable Law. 	This Dealership Agreement and the
rights of the parties hereunder shall be interpreted
in accordance with the laws of the State of New
Hampshire, and in the event of any disagreement, the
laws of this state shall apply and suit must be
brought in the State courts in Hillsborough County,
New Hampshire or in the Federal District for the State
of New Hampshire.
Dealership Agreement (document no. 1-1) at 29 of 52 (emphasis
supplied). 	That choice-of-law provision is narrow and governs
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only the interpretation of the contract and any assessment of
the parties’ respective rights and obligations under that
contract. 	That is, the parties’ choice-of-law provision assumes
that the contract is valid and does not speak to the law
governing its original formation. 	The provision’s limited scope
naturally counsels in favor of limited application.
MBNF’s Florida statutory claims do not relate to the
parties’ respective rights and obligations under the contract.
Instead, they go to the very formation of that contract and
whether MI-BOX was required to comply with Florida’s consumer
protection laws in order to form a valid and binding agreement
with MBNF. 	Consequently, a natural reading of the parties’
choice-of-law provision also counsels in favor of applying
Florida’s consumer protection statutes to the parties’ contract.
C. 	Over-Arching Public Policy Concerns.
Finally, the application of New Hampshire, rather than
Florida, law to the parties’ dispute would be contrary to over-
arching public policy considerations. 	As this court (Barbadoro,
J.) has recognized:
The United States Supreme Court generally disapproves
of choice-of-law clauses that operate “as a
prospective waiver” of statutory remedies, noting that
such clauses are “against public policy.” 	The
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principle has specific application in the securities
fraud context, as courts have held that it is “against
public policy to permit the use of choice of law
clauses to circumvent [the] legislatively created
shield” of state Blue Sky laws.
Gilbert v. Atlantic Trust Co., 2006 DNH 046, 2006 WL 1049707 at
*7 (D.N.H. April 19, 2006) (quoting Mitsubishi Motors Corp. v.
Soler Chrysler–Plymouth, 473 U.S. 614, 637 (1985)). 	That
reasoning applies with equal force in this case. 	MBNF is a
Florida limited liability company with its principle place of
business in Jacksonville, Florida. 	The parties’ contract grants
MBNF the exclusive right to operate its business using MI-BOX
products and trademarks in a specific territory that is located
entirely within the state of Florida. 	See Dealership Agreement,
Appendix A (document no. 1-1) at 31 of 52. 	Florida, then, has a
strong interest in the application of its consumer protection
laws to the formation of a contract to be performed within its
jurisdiction and involving one of its citizens (while, as noted,
New Hampshire lacks any such specific consumer protection
statutes). 	Consequently, any interpretation of the contract’s
choice-of-law provision to preclude application of Florida’s
consumer protection statutes would be against over-arching
public policy principles.
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In short, then, there are at least three reasons to apply
the substantive law of Florida, rather than New Hampshire, to
the parties’ dispute - at least to the extent it involves claims
related to the formation of the parties’ contract, as opposed to
the enforcement of that contract. 	First, and perhaps most
importantly, New Hampshire’s choice-of-law rules counsel in
favor of applying the substantive law of Florida. 	Second, the
scope of the parties’ contractual choice of law provision is
narrow and does not expressly (or even implicitly) apply to
contract formation; its terms are limited exclusively to
disputes arising under the contract. 	Because MBNF’s statutory
claims do not involve the interpretation or enforcement of the
contract itself, its choice-of-law provision does not address
this situation. 	And, finally, because courts disfavor efforts
to circumvent otherwise-applicable consumer protection statutes,
it would be against public policy to interpret the parties’
choice-of-law provision in a manner that would operate as a
“waiver” by MBNF of the protections afforded by Florida’s
consumer protection statutes.
In light of the foregoing, MBNF may proceed with count one
(violation of the Florida Deceptive and Unfair Trade Practices
Act) and count 3 (violation of the Florida Franchise Act).
Similarly, because MBNF’s common law fraudulent inducement claim
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(count two) goes to contract formation, rather than contract
interpretation or enforcement, that claim, too, shall be
interpreted under the provisions of Florida law.4
Discussion
I. 	Violation of FDUTPA (Count One).
To prevail on its claim under the Florida Deceptive and
Unfair Trade Practice Act (“FDUTPA”), MBNF must establish three
elements: (1) an unfair or deceptive trade practice; (2)
detrimental reliance/causation; and (3) damages. 	See, e.g.,
Rollins, Inc. v. Butland, 951 So. 2d 860, 869–70 (Fla. Dist. Ct.
App. 2006) (collecting cases). 	In addition, it must also “prove
the unfair act or deceptive practice was likely to deceive a
consumer acting reasonably in the same circumstances.” 	Drone
Nerds Franchising, LLC v. Childress, No. 19-CIV-61153-RAR, 2020
WL 10698613, at *3 (S.D. Fla. May 19, 2020) (citations omitted).
FDUTPA defines an unfair or deceptive trade practice to
include the violation of “any rules promulgated pursuant to the
Federal Trade Commission Act.” 	Fla. Stat. § 501.203(3).
Pursuant to the Trade Commission Act, the Federal Trade
4 	Parenthetically, the court notes that neither party has
identified any substantive difference between Florida and New
Hampshire law as it relates to claims for fraudulent inducement.
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Commission has implemented several regulations that govern the
sale of franchises. 	See 16 C.F.R. § 436.1, et seq. 	Those
regulations, which are generally known as the “Franchise Rule,”
require a franchisor to provide a prospective franchisee with a
“Franchise Disclosure Document” that includes 23 categories of
information about the franchisor. 	Here, MBNF says MI-BOX
violated the Franchise Rule by failing to provide MBNF with the
required Franchise Disclosure Document. 	That, in turn, says
MBNF, violated FDUTPA. 	See, e.g., Picktown Foods, LLC v. Tim
Hortons USA, Inc., No. 17-21072-CIV, 2017 WL 9854073, at *1
(S.D. Fla. Nov. 8, 2017) (“Violations of the FTC Franchise Rule
constitute a deceptive and unfair trade practice under the
Florida Deceptive and Unfair Trade Practices Act.”).
MI-BOX denies that it was required to provide the Franchise
Disclosure Document, claiming it did not sell MBNF a franchise.
Consequently, says MI-BOX, the Franchise Rule is inapplicable.
The court disagrees.
The relevant federal regulations define a franchise as
follows:
Franchise means any continuing commercial relationship
or arrangement, whatever it may be called, in which
the terms of the offer or contract specify, or the
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franchise seller promises or represents, orally or in
writing, that:
(1) The franchisee will obtain the right to operate a
business that is identified or associated with the
franchisor’s trademark, or to offer, sell, or
distribute goods, services, or commodities that are
identified or associated with the franchisor’s
trademark;
(2) The franchisor will exert or has authority to
exert a significant degree of control over the
franchisee’s method of operation, or provide
significant assistance in the franchisee’s method of
operation; and
(3) As a condition of obtaining or commencing
operation of the franchise, the franchisee makes a
required payment or commits to make a required payment
to the franchisor or its affiliate.
16 C.F.R. § 436.1(h) (emphasis supplied). 	Here, there is no
serious debate that both the first and third elements of that
test are met. 	The parties’ disagreement focuses on the second
element: whether MI-BOX had a significant degree of control over
MBNF’s method of operation, and/or provided significant
assistance in MBNF’s method of operation.
According to MI-Box, it neither exerts significant control
over MBNF’s method of operation nor provides significant
assistance in MBNF’s method of operation. 	Its argument on that
point is, however, entirely undeveloped and unsupported by
citations to record evidence, the parties’ contract itself, or
guiding precedent. 	Instead, MI-BOX relies solely on a series of
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general denials. 	See, e.g., Defendant’s Objection (document no.
67) at 3 (“Defendant denies that the cited description
establishes operational control, franchise classification, or
legal significance beyond the text of the agreements themselves,
which speak for themselves.”) and 5 (“Defendant admits that the
Dealership Agreement addresses equipment acquisition. 	Defendant
denies that such terms confer operational control, mandate
system support, or create a franchise or business opportunity
requiring franchise registration or disclosure.”). 	See also
Declaration of Edward Smith (document no. 61-1) at para. 9
(“Plaintiff’s operations were not controlled by MI-BOX Florida
on a day-to-day basis. 	MI-BOX Florida did not control
Plaintiff’s staffing, pricing, local marketing spending,
customer selection, vendor relationships, hiring decisions, or
business strategy. 	Plaintiff made independent operational and
financial decisions.”).
In response, MBNF points to the FTC Franchise Rule Guide,5
which provides examples of the types of behavior and/or
authority that constitute “significant control” by a franchisor
over the franchisee:
5 	Available at: https://www.ftc.gov/business-
guidance/resources/franchise-rule-compliance-guide.
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- 	site approval for unestablished businesses;
- 	site design or appearance requirements;
- 	hours of operation;
- 	production techniques;
- 	accounting practices;
- 	personnel policies;
- 	promotional campaigns requiring franchisee
participation or financial contribution;
- 	restrictions on customers; and
- 	locale or area of operation.
Id. at 2. 	“Significant types of assistance” are defined to
include:
- 	formal sales, repair, or business training programs;
- 	establishing accounting systems;
- 	furnishing management, marketing, or personnel advice;
- 	selecting site locations;
- 	furnishing systemwide networks and website; and
- 	furnishing a detailed operating manual.
Id. 	Factors of lesser significance when determining whether
“significant control or assistance” is present in a relationship
include:
- 	a requirement that a franchisee service or repair a
product (except warranty work);
- 	inventory controls;
- 	required displays of goods; and
- 	on-the-job assistance with sales or repairs.
Id. at 3.
In support of its assertion that the parties’ contract
involved the sale of a “franchise” (rather than merely a
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“business”) and, therefore, implicates the requirements of both
federal and Florida law governing the sale of franchises, MBNF
points first to the contract itself. 	As evidence that MI-BOX
exerts significant “control” over MBNF’s operation of the
business, MBNF notes that the contract provides that: 	MBNF must
purchase lift systems and containers exclusively from MI-BOX,
Dealership Agreement (document no. 61-1) at para. 1.1; MBNF must
display MI-BOX’s trademark on all lift systems and containers
used by MBNF, Dealership Agreement, at para. 1.5; MBNF must
maintain “in good condition the appearance of” all lift systems,
containers, and any signage, Id.; MI-BOX has the right to
“inspect any Lift Systems, Containers, signage, and promotional
material” used by MBNF, Id.; MBNF shall be awarded an exclusive
sales territory, provided it purchases a minimum number of
containers from MI-BOX each year, totaling at least 1,500
containers over a thirteen year period, Id. at 2.8; and, for a
period of one year, MBNF must use MI-BOX’s “recommended vendors”
to operate its dealership activities (e.g., insurance broker,
apparel and merchandise supplier, accountant, storage box
assembler, provider of moving supplies, etc.), Addendum to
Dealership Agreement, at para. B.
As evidence that MI-BOX is required to provide MBNF with
“significant assistance,” MBNF notes that the contract requires
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MI-BOX to furnish MBNF with operating manuals, software, access
to the MI-BOX website, operational training, container assembly
instructions, lift system training, tools required to assemble
storage containers, and “customer support services.” 	Dealership
Agreement, at para. 2.6. 	See generally FTC Franchise Rule
Guide, supra.
Beyond the contract itself, substantial extrinsic evidence
also supports MBNF’s assertion that MI-BOX does, indeed, sell
franchises and, more specifically, that what MBNF purchased was
a MI-BOX franchise, rather than merely a “dealership” or
“business.” 	For example,
1. 	In 2018 (well before the parties signed the
contract at issue), the United States Small
Business Administration recognized MI-BOX as a
franchise. 	See https://www.sba.gov/document
/support-sba-franchise-directory (visited on
February 1, 2026).
2. 	Shortly after the parties executed the contract,
MI-BOX itself publicly acknowledged that it is a
franchise: “After much thought and legal
consideration, MI-BOX elected to obtain franchise
status in 2022 with the filing of our Franchise
Disclosure Document to ensure all laws were
followed properly.” 	https://getmiboxsystem.com/
what-is-mi-box (visited on February 1, 2022); and
3. 	While no doubt an oversight, it is, perhaps,
revealing that MI-BOX repeatedly refers to the
“Dealership Agreement” between the parties as the
“Franchise Agreement.” 	See Defendant’s
Opposition (document no. 67) at 3 and 4. 	See
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also Affidavit of Edward Smith, Managing Member
of Mi-BOX (document no. 67-1) at paras. 5 and 8.
Based upon the evidence before the court, it is plain that
the parties’ Dealership Agreement involved the sale of a
franchise by MI-BOX to MBNF. 	Consequently, MI-BOX was obligated
to provide MBNF with a detailed “Franchise Disclosure Document”
in compliance with the requirements set forth in 16 C.F.R.
§ 436.5. 	See also 16 C.F.R. § 436.2 (“In connection with the
offer or sale of a franchise to be located in the United States
of America or its territories, unless the transaction is
exempted under subpart E of this part, it is an unfair or
deceptive act or practice in violation of Section 5 of the
Federal Trade Commission Act for any franchisor to fail to
furnish a prospective franchisee with a copy of the franchisor’s
current disclosure document, as described in subparts C and D of
this part.”) (emphasis supplied).
MI-BOX does not contend that its sale of a franchise to
MBNF was exempted from the disclosure requirements discussed
above, nor does it deny that it failed to provide MBNF with the
federally-mandated Franchise Disclosure Document. 	Such conduct
is, by definition, an unfair and deceptive practice under the
Federal Trade Commission Act (“FTCA”). 	It is also necessarily a
violation of Florida’s Deceptive and Unfair Trade Practices Act,
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Fla. Stat. § 501.203(3) (making any violation of a rule
promulgated pursuant to the FTCA a violation of FDUTPA).
But, as noted above, that does not end the matter. 	Proof
of an unfair and deceptive practice is only one element of a
viable claim. 	See Rollins, 951 So. 2d at 869–70; Drone Nerds
Franchising, No. 19-CIV-61153-RAR, 2020 WL 10698613, at 3. 	To
prevail on its claimed entitlement to summary judgment, MBNF
must also prove both detrimental reliance/causation and damages.
In other words, that MBNF has demonstrated that MI-BOX violated
the federal franchise rule (and, therefore, FDUTPA) does not
compel the conclusion that MBNF is entitled to summary judgment
on its FDUTPA claim. 	As the federal district court for the
Middle District of Florida has noted:
Where a particular statutory violation is found to
constitute a per se violation of FDUTPA, it is
presumed that the violation constitutes a deceptive or
unfair practice. 	Therefore, when the statute at issue
is a per se FDUTPA predicate, a plaintiff need not
allege the first element of a FDUTPA claim. 	However,
regardless of whether a statute is a per se FDUTPA
predicate or alleged to proscribe an unfair or
deceptive practice and therefore serve as an implied
FDUTPA predicate, a plaintiff is still required to
plead the remaining two elements, causation and
damages, in order to properly state a claim for a
FDUTPA violation.
Parr v. Maesbury Homes, Inc., No. 609CV-1268-ORL-19GJK, 2009 WL
5171770, at *8 (M.D. Fla. Dec. 22, 2009) (citations omitted).
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See also Cluck-U Chicken, Inc. v. Cluck-U Corp., 358 F. Supp. 3d
1295, 1313 (M.D. Fla. 2017) (same); Bookworld Trade, Inc. v.
Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350, 1364 (M.D.
Fla. 2007) (same).
On those additional essential elements of its FDUTPA claim,
MBNF’s arguments fall well short of the mark - indeed, MBNF
makes virtually no argument at all on the essential element of
detrimental reliance. 	Instead, it rests solely upon the fact
that MI-BOX violated both the FTC’s franchise regulations and
FDUTPA by failing to provide the Franchise Disclosure Document.
See, e.g., Plaintiff’s Reply Memorandum (document no. 68) at 5
(“Plaintiff seeks summary judgment on its FDUTPA claim based
solely on Defendant having sold a franchise without first
providing Plaintiff with a copy of its Franchise Disclosure
Document.”); id. at 7 (“The deception here does not turn on
subjective interpretations of informal communications. 	Instead,
it is established by Defendant’s undisputed conduct of selling a
franchise without providing an FDD.”); id. at 8 (“Defendant sold
a franchise to Plaintiff without first providing the FDD
mandated by federal law. 	That failure is unlawful in and of
itself and therefore constitutes a per se unfair and deceptive
act under FDUTPA, rendering Defendant’s authorities legally
inapposite and their ‘question of fact’ argument irrelevant.”).
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Typically, in cases of this sort, the plaintiff might
establish “causation” by introducing an affidavit or deposition
testimony from an authorized corporate agent stating that the
plaintiff suffered a loss by virtue of the defendant’s failure
to disclose certain material information required by the
Franchise Disclosure document. 	Alternatively, they might point
to material facts that would have been revealed had a Franchise
Disclosure Document been provided - facts that were only
discovered after the contract was signed (e.g., the franchisor’s
questionable financial state, prior bankruptcies, prior or
ongoing litigation, the estimated initial investment for
franchisees, etc.). 	That is to say, a plaintiff might point to
material facts which, if they had been timely revealed, might
have prompted the plaintiff to decline to enter the contractual
relationship at the outset. 	Or, a plaintiff in a case of this
sort might even provide an affidavit clearly and plainly stating
that it would not have purchased the franchise if it had been
provided the information required in the Franchise Disclosure
document. 	Here, MBNF has made no such argument. 	Nor,
necessarily has it provided supportive evidence in the form of
affidavits or deposition testimony.
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In short, then, MBNF has only established one of three
essential elements to its claim under FDUTPA: that MI-Box
committed an unfair and deceptive practice by failing to provide
the required Franchise Disclosure Document. 	What is lacking is
evidence that the absence of the Franchise Disclosure document
proximately caused MBNF to suffer specified damages. 	Nor is
there evidence that MBNF would not have entered into the
contract if it had actually been provided with the information
required in the Franchise Disclosure Document. 	Given that, MBNF
has not demonstrated entitlement to summary judgment on its
FDUTPA claim. 	In the context of summary judgment, “a laundry
list of possibilities and hypotheticals” and “[s]peculation
about mere possibilities, without more,” is not sufficient.
Tobin v. Fed. Express Corp., 775 F.3d 448, 451–52 (1st Cir.
2014). 	Documentary evidence and/or uncontradicted sworn
testimony is needed.
II. 	Fraudulent Inducement (Count Two).
To prevail on its claim for fraudulent inducement under
Florida law, MBNF must establish “(1) that the defendant
misrepresented a material fact; (2) that the defendant knew or
should have known that the statement was false; (3) that the
defendant intended that the representation would induce the
plaintiff to enter into a contract or business relation; and (4)
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that the plaintiff was injured by acting in justifiable reliance
on the misrepresentation.” 	Barnes v. Burger King Corp., 932 F.
Supp. 1420, 1425 (S.D. Fla. 1996). 	See also Bradley Factor,
Inc. v. United States, 86 F. Supp. 2d 1140, 1146 (M.D. Fla.
2000) (same). 	MBNF has not carried that burden.
According to MBNF, MI-BOX “knowingly supplied Plaintiff
with fabricated and inflated financial performance projections,
including pro formas, revenue forecasts, demand estimates, and
cost-and-rate disclosures, all created internally by MI-BOX
personnel and presented during the sales process.” 	Plaintiff’s
Memorandum (document no. 65) at 20 (emphasis supplied).
Moreover, says MBNF, “MI-BOX Florida’s own corporate
representative admitted that these numbers were not neutral
templates, but example figures chosen by MI-BOX Florida’s CFO
and corporate staff to illustrate anticipated profitability and
to persuade prospective purchasers to invest.” 	Id. (emphasis
supplied). 	See also Id. at 8 (“The pro forma was developed as a
‘sales tool’ and contained figures used to estimate future
business performance. 	Smith testified that the pro forma ‘was
originally developed by corporate as a sales tool so that
prospective, potential dealers could plug in their own numbers
and come up with their own idea of what their expenses were
going to be.’ 	The pro forma provided to [MBNF] was pre-filled
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28
with figures . . . using figures from corporate and from New
England and Florida dealers.”).
Even assuming those claims are true, MBNF has not pointed
to any evidence suggesting that those documents were materially
false (or materially “inflated”). 	Indeed, the only “evidence”
of that sort is, according to MBNF, identified in paragraphs 33
and 34 of its Undisputed Statement of Material Facts. 	See
Plaintiff’s Memorandum at 20 (“Plaintiff was induced to purchase
an oversized and overpriced territory based on projected demand
and profitability that MI-BOX knew had no factual foundation.”)
(citing its “Undisputed Statement of Material Facts,” at paras.
33-34). 	Yet those paragraphs do not exist (the last paragraph
in that statement of facts is numbered 29). 	See Id. at 9. 	MBNF
has not, for example, provided the court with actual sales
numbers or revenue statements that might be compared with the
allegedly false and materially misleading pro forma financial
projections supplied by MI-BOX - that is to say, evidence that
MBNF’s actual annual revenue fell materially short of the
allegedly false projections supplied by MI-BOX.
Moreover, MBNF concedes that those projections contained
disclaimers saying that they were “for informational purposes
only. 	Revenue and expenses will vary between dealers and
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29
locations.” 	Id. at 8. 	See also Deposition of Edward Smith
(document no. 66-1) at 83; Affidavit of Matt Bianco, Owner and
General Manager of MBNF (document no. 65-1) at para. 27. 	Given
that, whether MBNF was entitled to rely upon those documents
would seem to be a factual question to be resolved by the trier-
of-fact. 	At a minimum, MBNF has not identified any precedent
suggesting that such issues may be resolved as a matter of law.
At this juncture, the court cannot conclude that MBNF has
carried its burden. 	Among other things, factual questions of
material falsity, reasonable and detrimental reliance, and
inducement remain unresolved. 	Accordingly, as to its claim for
fraudulent inducement, MBNF is not entitled to summary judgment.
III. Rescission (Count Four).
Finally, MBNF seeks summary judgment on count four of its
complaint: “rescission.” 	But rescission is a remedy - an
equitable form of relief - rather than a free-standing cause of
action under Florida law.
Rescission is an equitable remedy. 	The prime object
of rescission is “to undo the original transaction and
restore the former status” of the parties. 	To
accomplish this result, a court of equity may use
broad powers unavailable when a judgment is based on
an action at law. 	Where the remedy is justified
because fraud has been established, a court “may set
aside all transactions founded on it, however they may
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have been effected, and notwithstanding any
contrivance by which it may have been attempted to
protect them, and may also treat acts as having been
done which ought to have been done, and convert the
party who has committed a fraud and profited by it
into a trustee for the injured party.”
Billian v. Mobil Corp., 710 So. 2d 984, 990 (Fla. Dist. Ct. App.
1998) (quoting Willis v. Fowler, 102 Fla. 35, 136 So. 358, 368
(1931)) (emphasis supplied). 	See also TTSI Irrevocable Tr. v.
ReliaStar Life Ins. Co., 60 So. 3d 1148, 1150 (Fla. Dist. Ct.
App. 2011) (same).6
Because rescission is a remedy, rather than a cause of
action, Count 4 of MBNF’s complaint (“Rescission”) fails to
state a viable claim and is dismissed. 	See generally Fed. R.
Civ. P. 12(b)(6). 	Nevertheless, MBNF’s complaint adequately
pleads “rescission” as a form of remedy in its prayer for
relief. 	Should MBNF prevail on its fraudulent inducement claim,
it will be permitted to brief the issue of whether it has
adequately demonstrated its entitlement to rescission. 	See,
e.g., Billian v. Mobil Corp., 710 So. 2d at 991 (noting the
6 	The court notes that the same is true under New Hampshire
law. 	See, e.g., Ellis v. Candia Trailers & Snow Equip., Inc.,
164 N.H. 457 (2012) (“Rescission is an equitable remedy the
granting of which is always a matter within the sound discretion
of the trial court, depending upon the circumstances of each
particular case.”); Mooney v. Nationwide Mut. Ins. Co., 149 N.H.
355, 357, 822 A.2d 567, 569 (2003) (same).
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elements of proof a plaintiff must establish in order to
demonstrate its entitlement to rescission); Crown Ice Mach.
Leasing Co. v. Sam Senter Farms, Inc., 174 So. 2d 614, 617 (Fla.
Dist. Ct. App. 1965) (same).
Conclusion
At this point, two things have been established. 	First,
Florida’s substantive law applies to the parties’ dispute. 	And,
second, MI-BOX committed an unfair and/or deceptive practice
under both the federal Franchise Rule and FDUTPA when it sold a
franchise to MBNF without providing the required Franchise
Disclosure Document. 	Nevertheless, MBNF has failed to
demonstrate that there are no genuinely disputed material facts
as to the remaining elements of its FDUTPA claim nor,
necessarily, has it shown that it is entitled to judgment as a
matter of law. 	It has likewise failed to show its entitlement
to summary judgment with respect to its fraudulent inducement
claim.
As to Counts One (FDUTPA) and Two (fraudulent inducement)
of its complaint, MBNF’s Motion for Partial Summary Judgment
(document no. 65) is necessarily denied. 	Count Four of its
complaint (“rescission”) is dismissed for failure to state a
viable cause of action. 	And, finally, MI-BOX’s request for
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Relief under Rule 56(d), see Defendant’s Objection (document no.
67) at 9-10, is denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
March 25, 2026
cc: 	Counsel of Record
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