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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10677
____________________
URI MARRACHE,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
versus
BACARDI U.S.A., INC.,
a Delaware corporation,
d.b.a. The Bombay Spirits Company U.S.A.,
WINN-DIXIE SUPERMARKETS, INC.,
d.b.a. Winn Dixie Liquors,
Defendants-Appellees.
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2 Opinion of the Court 20-10677
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-23856-RNS
____________________
Before WILSON, LAGOA, and BRASHER, Circuit Judges.
LAGOA, Circuit Judge:
Uri Marrache appeals the district court’s order dismissing his
amended class action complaint against Bacardi U.S.A., Inc., and
Winn-Dixie Supermarkets, Inc. (collectively, “Defendants”). Mar-
rache asserted claims against Defendants under the Florida Decep-
tive and Unfair Trade Practices Act (“FDUTPA”) and for unjust en-
richment based on the purchase of Bombay Sapphire Gin contain-
ing grains of paradise by Marrache and the other class members.
Marrache claimed that the inclusion of grains of paradise in Bom-
bay Sapphire Gin was in violation of Florida Statute § 562.455.
This appeal asks us to resolve four issues: (1) whether sec-
tion 562.455 is preempted by federal law, i.e., the Food Additives
Amendment of 1958 (the “Food Additives Amendment”), Pub. L.
85-929, 72 Stat. 1784 (1958), which amended the Federal Food,
Drug, and Cosmetic Act (“FFDCA”), and its implementing regula-
tions; (2) whether Marrache failed to state claims under FDUTPA
against Defendants; (3) whether Marrache failed to state claims for
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20-10677 Opinion of the Court 3
unjust enrichment against Defendants; and (4) whether the district
court abused its discretion in dismissing the amended complaint
with prejudice. While we conclude that section 562.455 is not
preempted by the Food Additives Amendment to the FFDCA, we
nonetheless affirm the district court’s order dismissing Marrache’s
amended class action complaint with prejudice. First, Marrache’s
FDUTPA claims are barred by FDUTPA’s safe harbor provision,
which exempts acts or practices required or specifically permitted
by federal or state law. See Fla. Stat. § 501.212. Second, even if the
FDUTPA claims did not fall under FDUTPA’s safe harbor provi-
sion, Marrache failed to state a plausible claim for actual damages
under FDUTPA and thus dismissal was also proper on this ground.
We further affirm the district court’s dismissal of Marrache’s claims
for unjust enrichment and conclude that the district court did not
abuse its discretion in dismissing the amended complaint with prej-
udice as any attempt to amend would be futile.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bacardi produces Bombay Sapphire Gin (“Bombay”), and
Winn-Dixie sells Bombay in its stores. According to Bombay’s
marketing and labeling, the gin contains ten “hand-selected botan-
icals from exotic locations around the world.” One of those botan-
ical ingredients is a substance known as “grains of paradise,” the
inclusion of which is “prominently etched on each of [Bombay’s]
distinctive blue bottles.”
Marrache filed a class action complaint against Defendants
in Florida state court “on behalf of all persons in the State of Florida
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4 Opinion of the Court 20-10677
who have purchased Bombay.” Marrache asserted claims against
Defendants under FDUTPA and for unjust enrichment based on
the fact that he and the other class members had purchased Bom-
bay containing grains of paradise, which he claimed was in viola-
tion of Florida Statute § 562.455. Bacardi, with Winn-Dixie’s con-
sent, timely removed Marrache’s action to federal court pursuant
to the Class Action Fairness Act. Defendants then moved to dis-
miss the complaint.
Before the district court ruled on Defendants’ motion to dis-
miss, Marrache filed an amended complaint, which modified the
proposed class to “all citizens of the State of Florida . . . . who are
consumers of Bombay . . . in the State of Florida.” Marrache again
alleged that Bacardi added grains of paradise to Bombay—as indi-
cated by the labeling on Bombay’s bottles—in violation of section
526.455. Marrache also alleged that “Winn-Dixie knowingly sold
[Bombay]” to him and the other class members in Florida, that he
and the other class members “purchased and consumed [Bombay]
in Florida” and that, as a result, they were damaged. Marrache as-
serted claims under FDUTPA for damages and for declaratory and
injunctive relief, see Fla. Stat. § 501.211, alleging that Defendants
had “engaged in unfair methods of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the
conduct of its trade or commerce” by adulterating Bombay with
grains of paradise and then knowingly selling it to Marrache and
the other class members in violation of Florida Statute § 562.455
and Florida Statute §§ 500.04(1)–(3). Marrache also asserted a claim
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20-10677 Opinion of the Court 5
for unjust enrichment, alleging that he and the other class members
“conferred direct benefits to Defendants by purchasing Bombay”
from Defendants at Winn-Dixie’s stores, that Defendants appreci-
ated those conferred benefits “by virtue of [their] retention of the
money paid for the Bombay,” and that it would be inequitable for
Defendants to retain those benefits as they had sold an illegal prod-
uct to them.
Defendants moved to dismiss the amended complaint, argu-
ing that Marrache failed to allege facts reflecting how grains of par-
adise adulterated Bombay or demonstrating deceptive acts by De-
fendants, specifically noting that the inclusion of grains of paradise
in Bombay was etched on Bombay’s bottles. Defendants also ar-
gued that Marrache failed to allege FDUTPA violations, including
failing to adequately allege causation and actual damages, and that
Marrache’s claims fell within FDUTPA’s safe harbor provision,
which exempts acts or practices required or specifically permitted
by federal or state law. See Fla. Stat. § 501.212. Defendants further
argued that Marrache failed to state a claim for unjust enrichment.
Additionally, Defendants contended that the Food Additives
Amendment, which amended the FFDCA, preempted section
562.455, as the Food and Drug Administration (“FDA”), pursuant
to the rule-making authority delegated to it by Congress under the
Food Additives Amendment, had expressly identified grains of par-
adise as a substance “generally recognized as safe” (“GRAS”) in 21
C.F.R. § 182.10. As such, Defendants argued that because federal
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6 Opinion of the Court 20-10677
and state law conflicted, section 562.455 was preempted by federal
law. Marrache opposed Defendants’ motion to dismiss. 1
In its order granting Defendants’ motion to dismiss, the dis-
trict court found that the Food Additives Amendment preempted
Florida Statute § 562.455. The district court considered the Food
Additives Amendment’s legislative history and explained that sec-
tion 562.455 frustrated the FFDCA’s purpose because the federal
statute “seeks to advance food technology by allowing the use of
safe food additives, and the antiquated Florida statute prohibits the
use of an additive that has been found to be generally regarded as
safe by the FDA.”
Additionally, the district court found that Marrache failed to
state a FDUTPA claim because he had not “sufficiently alleged any
actual damages resulting from the purported unfair or deceptive
act”—the sale of Bombay produced with grains of paradise. The
district court explained that Marrache’s amended complaint made
no allegations of actual damages, but rather, alleged that he and the
other class members were injured by purchasing an illegal prod-
uct—Bombay produced with grains of paradise—that he claimed
was worthless. The district court, however, noted that Marrache
did not explain how the product could be worthless, as he did not
allege that (1) he could not or did not drink the gin, (2) he sought a
refund of or complained about the Bombay at the time of purchase
1Marrache also moved to remand the case back to state court. The district
court denied Marrache’s motion as untimely under 26 U.S.C. § 1447(c).
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20-10677 Opinion of the Court 7
or consumption, or (3) he suffered any side effect, health issue, or
harm from the grains of paradise in Bombay. The district court
also addressed Debernardis v. IQ Formulations, LLC, 942 F.3d
1076, 1084–85 (11th Cir. 2019), in which this Court, when analyzing
whether the plaintiffs had alleged a concrete injury for purposes of
standing, stated that “at the motion to dismiss stage, . . . a dietary
supplement that is deemed adulterated and cannot lawfully be sold
has no value.” While explaining this reasoning “seemingly” sup-
ported Marrache’s allegation that the Bombay was worthless be-
cause it was allegedly adulterated with grains of paradise, the dis-
trict court explained that because the Florida statute criminalizing
the adulteration of alcohol with grains of paradise was preempted
by federal law, the Bombay was not worthless. The district court
also found Marrache’s unjust enrichment claim failed because De-
fendants were not unjustly enriched when they sold a legal bottle
of gin in exchange for money. The district court dismissed Mar-
rache’s amended complaint with prejudice, as Marrache had al-
ready amended his complaint once and any “repleading would be
futile.” This timely appeal ensued.
II. STANDARDS OF REVIEW
We review a district court’s grant of a motion to dismiss
with prejudice de novo, “accepting the [factual] allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.” City of Miami v. Citigroup Inc., 801 F.3d 1268,
1275 (11th Cir. 2015) (alteration in original) (quoting Mills v. Fore-
most Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008)); accord
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8 Opinion of the Court 20-10677
Cromartie v. Shealy, 941 F.3d 1244, 1251 (11th Cir. 2019). Addi-
tionally, whether federal law preempts a state law claim is a ques-
tion we review de novo. Graham v. R.J. Reynolds Tobacco Co.,
857 F.3d 1169, 1181 (11th Cir. 2017).
Generally, a district court’s decision to deny a motion to
amend a complaint is reviewed for an abuse of discretion. Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004). But
“we will review de novo an order denying leave to amend on the
grounds of futility, because it is a conclusion of law that an
amended complaint would necessarily fail.” City of Miami, 801
F.3d at 1275.
III. ANALYSIS
On appeal, Marrache contends that the district court erred
for several reasons. First, Marrache argues that the district court
erred in finding that the Food Additives Amendment to the FFDCA
preempted section 562.455, Florida Statutes. Next, he argues that
the district court erred in finding that he failed to state claims under
FDUTPA and for unjust enrichment against Defendants. Finally,
he contends that even if the district court properly dismissed his
amended complaint, the district court abused its discretion in dis-
missing it with prejudice, as he should have been allowed another
opportunity to amend. We address these arguments in turn.
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20-10677 Opinion of the Court 9
A. Whether Federal Law Preempts Florida Statute § 562.455
Marrache argues that the district court erred in determining
that section 562.455 was preempted by the Food Additives Amend-
ment to the FFDCA. We agree.
In 1868, the Florida Legislature enacted section 562.455,
which provides in relevant part:
Whoever adulterates, for the purpose of sale, any liq-
uor, used or intended for drink, with . . . grains of par-
adise, . . . or any other substance which is poisonous
or injurious to health, and whoever knowingly sells
any liquor so adulterated, shall be guilty of a felony of
the third degree, punishable as provided in [Florida
Statute] s. 775.082, s. 775.083, or s. 775.084.
Seventy years later, in 1938, Congress enacted the FFDCA. Pub. L.
No. 75-717, 52 Stat. 1040 (1938); Flemming v. Fla. Citrus Exch., 358
U.S. 153, 160–61 (1958). The FFDCA “was designed primarily to
protect consumers from dangerous products,” i.e., “to safeguard
the consumer by applying the [FFDCA] to articles from the mo-
ment of their introduction into interstate commerce . . . to the mo-
ment of their delivery to the ultimate consumer.” United States v.
Sullivan, 332 U.S. 689, 696 (1948); see also 21 U.S.C. § 393(b)(2) (ex-
plaining that the FDA shall “protect the public health by ensuring
that . . . foods are safe”); POM Wonderful LLC v. Coca-Cola Co.,
573 U.S. 102, 108 (2014) (“The [F]FDCA statutory regime is de-
signed primarily to protect the health and safety of the public at
large.”).
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10 Opinion of the Court 20-10677
In 1958, Congress enacted the Food Additives Amendment
to the FFDCA in order to “protect the public health by amending
the [FFDCA] to prohibit the use in food of additives which have
not been adequately tested to establish their safety.” Pub. L. No.
85-929, 72 Stat. 1784, 1784 (1958). Under the FFDCA, the term
“food” includes “articles used for food or drink for man or other
animals.” 21 U.S.C. § 321(f). Section 2 of the Food Additives
Amendment, which is codified at 21 U.S.C. § 321(s), defines “food
additive,” in relevant part, as:
any substance the intended use of which results or
may reasonably be expected to result, directly or in-
directly, in its becoming a component or otherwise
affecting the characteristics of any food . . . , if such
substance is not generally recognized, among experts
qualified by scientific training and experience to eval-
uate its safety, as having been adequately shown
through scientific procedures (or, in the case of a sub-
stance used in food prior to January 1, 1958, through
either scientific procedures or experience based on
common use in food) to be safe under the conditions
of its intended use.
The term “safe,” as used in § 321(s), references “the health of man
or animal.” Id. § 321(u). Under section 3 of the Food Additives
Amendment, which is codified at 21 U.S.C. § 342, “[a] food shall be
deemed to be adulterated . . . if it is or if it bears or contains (i) any
food additive that is unsafe within the meaning of [21 U.S.C.
§] 348.” Id. § 342(a)(2)(C). Section 348, in turn, provides that “[a]
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20-10677 Opinion of the Court 11
food additive shall . . . be deemed to be unsafe for the purposes of
the application of clause (2)(C) of section 342(a) of this title, unless”,
of relevance here, “there is in effect, and it and its use or intended
use are in conformity with, a regulation issued under this section
prescribing the conditions under which such additive may be safely
used.” Id. § 348(a)(2). Additionally, “[w]hile such a regulation re-
lating to a food additive . . . is in effect, . . . a food shall not, by rea-
son of bearing or containing such a food additive in accordance
with the regulation or notification, be considered adulterated un-
der section 342(a)(1) of this title.” Id. § 348(a).
The FDA has issued regulations establishing and explaining
its “generally recognized as safe” (“GRAS”) regulatory regime for
food additives. The FDA Commissioner is given the authority to
determine whether a food additive is GRAS. See 21 U.S.C.
§ 348(b)–(d); 21 C.F.R. §§ 170.35, 170.38, 171.100(a); see also Nem-
phos v. Nestle Waters N. Am., Inc., 775 F.3d 616, 627 (4th Cir. 2015)
(“Food additives generally are presumed unsafe until approved by
the FDA, and the agency regulates the conditions under which ap-
proved additives may be used safely.”). In 21 C.F.R. § 170.30, the
FDA establishes how a food additive may be classified as GRAS and
notes, in 21 C.F.R. § 182.1(a) and (d), that “[i]t is impracticable to
list all substances that are [GRAS] for their intended use” but that
many substances that are GRAS “are listed in this part.” Indeed, in
21 C.F.R. § 182.10, the FDA lists “grains of paradise” as a “spice[]
and other natural seasoning[] and flavoring[]” that is GRAS. See
also Substances Generally Recognized as Safe; Spices, Seasonings,
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12 Opinion of the Court 20-10677
Flavorings, Essential Oils, Oleoresins, and Natural Extractives, 25
Fed. Reg. 404 (Jan. 19, 1960).
Marrache argues that the district court erred in finding that
the Food Additives Amendment grants the FDA broad regulatory
authority to control the introduction of food additives into inter-
state commerce and that, as such, section 562.455 is preempted by
the Food Additives Amendment and its implementing regulations.
Specifically, he asserts that the FDA’s authority under the Food Ad-
ditives Amendment “is quite narrow and focused - - it is to keep
unsafe food additives out of the market” and that the fact that
“[o]nce the food additive is determined to be GRAS, there is no
longer an issue as to whether it is safe for consumption . . . does not
mean that the food additive must be allowed to be placed on the
market.” Marrache therefore claims that there is no directive un-
der the Food Additives Amendment (and its accompanying regula-
tions) that because a food additive is GRAS, it must be permitted
to be sold.
The Supremacy Clause of the Constitution “supplies a rule
of priority,” Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901
(2019), and provides that the “Constitution, and the Laws of the
United States . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Con-
stitution or Laws of any State to the Contrary notwithstanding,”
U.S. Const. art. 6, cl. 2. Thus, where a federal law and a state law
conflict, “federal law trumps state law.” Fla. State Conf. of
N.A.A.C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008). And
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20-10677 Opinion of the Court 13
“[f]ederal regulations have no less pre-emptive effect than federal
statutes.” Fid. Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141,
153 (1982); accord Wyeth v. Levine, 555 U.S. 555, 576 (2009).
The preemption doctrine identifies the following three cat-
egories: (1) express preemption; (2) field preemption; and (3) con-
flict preemption. See Browning, 522 F.3d at 1167. “Express
preemption occurs when Congress manifests its intent to displace
a state law using the text of a federal statute.” Id. While Congress’s
“express statement on pre-emption is always preferable, the lack of
such a statement does not end the inquiry.” Fresenius Med. Care
Holdings, Inc. v. Tucker, 704 F.3d 935, 939 (11th Cir. 2013) (quot-
ing PLIVA, Inc. v. Mensing, 564 U.S. 604, 618 n.5 (2011)). Indeed,
“[s]tate law can be impliedly preempted by federal law in cases of
field preemption and conflict preemption.” Id. “Field preemption
exists where Congress determines that a certain field must be reg-
ulated exclusively by the federal government.” Id. Conflict
preemption occurs “where (1) ‘compliance with both federal and
state regulations is a physical impossibility,’ or (2) ‘the challenged
state law stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress.’” Id. (quoting
Arizona v. United States, 567 U.S. 387, 399 (2012); see also Cham-
ber of Com. of U.S. v. Whiting, 563 U.S. 582, 607 (2011) (“[A] high
threshold must be met if a state law is to be preempted for conflict-
ing with the purposes of a federal Act.” (quoting Gade v. Nat’l Sold
Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992))). As the Supreme
Court has recently recognized, however, these different categories
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14 Opinion of the Court 20-10677
“are not rigidly distinct.” Va. Uranium, 139 S. Ct. at 1901 (quoting
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 n.6
(2000)).
In examining preemption issues, our analysis is guided by
two principles. “First, ‘the purpose of Congress is the ultimate
touchstone in every pre-emption case.’” Wyeth, 555 U.S. at 565
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). “Con-
gress’ intent, of course, primarily is discerned from the language of
the pre-emption statute and the ‘statutory framework’ surrounding
it.” Graham, 857 F.3d at 1186 (quoting Lohr, 518 U.S. at 486); ac-
cord Fresenius, 704 F.3d at 939 (“We use our judgment to deter-
mine when state law creates an unconstitutional obstacle to federal
law, and ‘this judgment is informed by examining the federal stat-
ute as a whole and identifying its purpose and intended effects.’”
(quoting Ga. Latino Alliance for Human Rights v. Governor of
Georgia, 691 F.3d 1250, 1263 (11th Cir. 2012))). Second, we assume
that “the historic police powers of the States are not superseded
unless that was the clear and manifest purpose of Congress.” Frese-
nius, 704 F.3d at 939–40 (quoting Arizona, 567 U.S. at 400); accord
Wyeth, 555 U.S. at 565, 575 (explaining the presumption against
preemption). This principle particularly applies in a case “in which
Congress has ‘legislated . . . in a field which the States have tradi-
tionally occupied.’” Lohr, 518 U.S. at 485 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)). For example, “the super-
vision of the readying of foodstuffs for market has always been
deemed a matter of peculiarly local concern,” and “the States have
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20-10677 Opinion of the Court 15
always possessed a legitimate interest in ‘the protection of (their)
people against fraud and deception in the sale of food products’ at
retail markets within their borders.” Fla. Lime & Avocado Grow-
ers, Inc. v. Paul, 373 U.S. 132, 144 (1963) (quoting Plumley v. Mas-
sachusetts, 155 U.S. 461, 472 (1894)). Therefore, “[f]ederal regula-
tion of a field of commerce should not be deemed preemptive of
state regulatory power in the absence of persuasive reasons—ei-
ther that the nature of the regulated subject matter permits no
other conclusion, or that the Congress has unmistakably so or-
dained.” Nat’l Ass’n of State Util. Consumer Advocs. v. FCC, 457
F.3d 1238, 1252 (11th Cir. 2006) (quoting Fla. Lime, 373 U.S. at 142).
Here, the district court determined that federal law
preempted section 562.455 based on conflict preemption because
section 562.455 frustrated the purposes and objectives of the Food
Additives Amendment and its implementing regulations. We con-
clude, however, that section 562.455 is not preempted by the Food
Additives Amendment and its implementing regulations because
no conflict exists between federal and state law.
First, Defendants have failed to show how compliance with
the Food Additives Amendment and its implementing regula-
tions—federal law—and section 562.455—state law—would be a
physical impossibility. See Wyeth, 555 U.S. at 573 (“Impossibility
pre-emption is a demanding defense.”). While the FDA has deter-
mined that grains of paradise is GRAS under the Food Additives
Amendment, see 21 C.F.R. § 182.10, i.e., permitting grains of para-
dise to be included in food or alcohol, neither the Food Additives
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16 Opinion of the Court 20-10677
Amendment nor its implementing regulations require states to al-
low the sale of alcohol containing an additive once that additive is
deemed GRAS. In other words, the fact that grains of paradise can
be included in alcohol under federal law does not mean that federal
law mandates individual states to allow the sale of alcohol contain-
ing grains of paradise. For example, although it would undoubt-
edly be inconvenient, Defendants could comply with both federal
law and state law by selling Bombay without grains of paradise in
Florida while selling Bombay with grains of paradise in other states.
Thus, we find no physical impossibility preventing Defendants’
compliance with both federal law permitting grains of paradise to
be included in alcohol and section 562.455 banning the inclusion of
grains of paradise in alcohol sold in Florida. Cf. Fla. Lime, 373 U.S.
at 133–34, 139, 142–44 (explaining that there was not a physical im-
possibility of dual compliance with a California law that gauged av-
ocados’ maturity based on oil content and prohibited the sale of
avocados under a certain oil content and federal regulations gov-
erning the marketing of Florida avocados based on date, size, and
weight, as the record evidence demonstrated that Florida avocado
growers could avoid rejection under California law and still comply
with the federal regulations); Fresenius, 704 F.3d at 941 (finding no
physical impossibility of compliance with a federal regulation al-
lowing certain exemptions from a physician self-referral ban and a
Florida law disallowing those exemptions because the physicians
employed by the appellants could “comply with [Florida law] with-
out neglecting any obligations under federal law”).
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20-10677 Opinion of the Court 17
Second, Defendants failed to demonstrate that section
562.455 frustrates Congress’s purpose in enacting the Food Addi-
tives Amendments. Defendants urge us to consider statements
contained in the legislative history of the Food Additives Amend-
ment, as the district court did in its analysis. Specifically, Defend-
ants point to: (1) statements in a Senate Report concerning the
Food Additives Amendment that a “flaw in existing law” had “un-
necessarily proscribe[d] the use of additives” and that “existing law
should be changed to permit the use of such . . . when the proposed
usages of such additives are in amounts accepted by the [FDA] as
safe,” see S. Rep. No. 2422, at 2 (1958), and (2) a statement in the
Congressional record suggesting that the purpose of the Food Ad-
ditives Amendment was both “to protect the health of consumers
by requiring manufacturers of food additives and food processors
to pretest any potentially unsafe substances which are to be added
to food” and “to advance food technology by permitting the use of
food additives at safe levels,” 104 Cong. Rec. 17,413 (daily ed. Aug.
13, 1958). Based on this legislative history, Defendants argue that
Congress’s purpose in enacting the Food Additives Amendment
was to “establish a national repository of safe ingredients upon
which consumers and manufacturers could rely” and “to prevent
rules that unnecessarily prohibit access to safe food ingredients.”
We decline Defendants’ invitation to find section 562.455
preempted based on this legislative history. When interpreting a
statute, “we do not typically ‘resort to legislative history’ when a
statute is relatively clear,” especially not “to undermine the plain
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18 Opinion of the Court 20-10677
meaning of the statutory language.” CSX Corp. v. United States,
909 F.3d 366, 369 (11th Cir. 2018) (quoting Harris v. Garner, 216
F.3d 970, 976 (11th Cir. 2000)). This principle equally applies to our
preemption analysis. See Cipollone v. Liggett Grp., Inc., 505 U.S.
504, 519–21 & n.19 (1992). “‘[E]vidence of pre-emptive purpose,’
whether express or implied, must therefore be ‘sought in the text
and structure of the statute at issue.’” Va. Uranium, 139 S. Ct. at
1907 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664
(1993))). Reviewing the statutory language of the Food Additives
Amendment, Congress stated that its purpose in amending the
FFDCA was “to prohibit the use in food of additives which have
not been adequately tested to establish their safety,” 72 Stat. at
1784, not to prevent states from regulating or banning food addi-
tives, even if the FDA recognizes such additives as GRAS. Indeed,
Congress did not include in the text of the statutory language at
issue the statements contained in the legislative history that De-
fendants rely upon when it enacted the Food Additives Amend-
ment. “The ‘plain’ in ‘plain meaning’ requires that we look to the
actual language used in a statute, not to the circumstances that
gave rise to that language.” See CSX Corp., 909 F.3d at 369 (quot-
ing CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224
(11th Cir. 2001))); cf. Va. Uranium, 139 S. Ct. at 1907–08.
Congress’s purpose in enacting the Food Additives Amend-
ment—as derived from the statutory text—was to prohibit unsafe
food additives from being included in food and alcohol to protect
the health and safety of the public. Section 562.455, which bans the
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20-10677 Opinion of the Court 19
adulteration of alcohol with grains of paradise, does not frustrate
that purpose, even if the FDA has determined that grains of para-
dise is GRAS. We therefore conclude that section 562.455 is not
preempted by the Food Additives Amendment and its implement-
ing regulations because no conflict exists between federal and state
law.
While we conclude that the district court erred in its reason-
ing for granting the dismissal of Marrache’s claims based on conflict
preemption, we nonetheless affirm the district court’s dismissal of
Marrache’s amended complaint with prejudice. “[A] prevailing
party is entitled to defend its judgment on any ground preserved in
the district court,” Mass. Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479,
481 (1976), and we “may affirm for any reason supported by the
record, even if not relied upon by the district court,” Allen v. USAA
Cas. Ins. Co., 790 F.3d 1274, 1278 (11th Cir. 2015).
In their motion to dismiss, Defendants moved to dismiss the
amended complaint with prejudice based on several arguments.
Of relevance to this appeal, Defendants asserted that FDUTPA con-
tains a safe harbor provision that exempts conduct from violating
FDUTPA if it is an act or practice required or specifically permitted
by federal or state law. Defendants further contended that Mar-
rache’s FDUTPA claims also failed to state a claim because they did
not allege actual damages. 2 Finally, Defendants asserted that
2 The district court also found that dismissal was warranted on this ground.
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20 Opinion of the Court 20-10677
Marrache failed to state a claim for unjust enrichment. Specifically,
Defendants asserted that the amended complaint failed to contain
any allegation that Plaintiff and the class members purchased Bom-
bay from Bacardi or that the plaintiffs conferred a direct benefit on
Defendants. Because Marrache’s claims are not preempted, we
now address whether the district court erred in granting with prej-
udice Defendants’ 12(b)(6) motion to dismiss. See Worthy v. City
of Phenix City, 930 F.3d 1206, 1216–17 (11th Cir. 2019).
B. Whether Marrache states a claim under FDUTPA
1. Stating a Claim under FDUTPA
On appeal, Marrache contends that the district court erred
in finding that he failed to state a claim under FDUTPA. Under
FDUTPA, “[u]nfair methods of competition, unconscionable acts
or practices, and unfair or deceptive acts or practices in the conduct
of any trade or commerce are . . . unlawful.” Fla. Stat. § 501.204.
Florida Statute § 501.211 permits an individual aggrieved by a
FDUTPA violation to bring a private action to obtain a declaratory
judgment that an act or practice violates FDUTPA. Accord Cruz
v. Cingular Wireless, LLC, 648 F.3d 1205, 1207 n.5 (11th Cir. 2011).
Of relevance here, a FDUTPA violation may be based upon any
law or statute that “proscribes unfair methods of competition, or
unfair, deceptive, or unconscionable acts or practices.” Fla. Stat.
§ 501.203(3)(c).
The three elements of a consumer claim under FDUTPA
are: “(1) a deceptive act or unfair practice; (2) causation; and (3)
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20-10677 Opinion of the Court 21
actual damages.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 985–
86 (11th Cir. 2016); accord City First Mortg. Corp. v. Barton, 988
So. 2d 82, 86 (Fla. Dist. Ct. App. 2008). An objective test is used to
determine whether an act is deceptive under FDUTPA, and “the
plaintiff must show that ‘the alleged practice was likely to deceive
a consumer acting reasonably in the same circumstances.’” Carri-
uolo, 823 F.3d at 983–84 (quoting State, Office of the Att’y Gen. v.
Com. Com. Leasing, LLC, 946 So. 2d 1253, 1258 (Fla. Dist. Ct. App.
2007)); accord Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281,
1284 (11th Cir. 2007). To establish an unfair practice, the plaintiff
must show that it is “one that ‘offends established public policy’
and one that is ‘immoral, unethical, oppressive, unscrupulous or
substantially injurious to consumers.’” PNR, Inc. v. Beacon Prop.
Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (quoting Samuels v.
King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 489 (Fla. Dist.
Ct. App. 2001)). Actual damages under FDUTPA “are measured
according to ‘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 condition in which it should have been delivered ac-
cording to the contract of the parties.’” Carriuolo, 823 F.3d at 986
(quoting Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. Dist. Ct.
App. 1984)). A plaintiff, however, cannot state a cause of action
under FDUTPA if the consumer fails to plead that they suffered
actual damages. See Macias v. HBC of Florida, Inc., 694 So. 2d 88,
90 (Fla. Dist. Ct. App. 1997) (holding that plaintiff failed to state a
cause of action under FDUTPA as she suffered no actual damages
and affirming dismissal of complaint with prejudice). Indeed,
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22 Opinion of the Court 20-10677
“[t]he members of [a] putative class who experienced no actual loss
have no claim for damages under FDUTPA.” Rollins, Inc. v. But-
land, 951 So. 2d 860, 873 (Fla. Dist. Ct. App. 2006)). FDUTPA “does
not provide for the recovery of nominal damages, speculative
losses, or compensation for subjective feelings of disappointment.”
Barton, 988 So. 2d at 86 (quoting Rollins, 951 So. 2d at 873).
2. FDUTPA’s Safe Harbor Provision
In his FDUTPA claims, Marrache alleged that Defendants
had “engaged in unfair methods of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the
conduct of its trade or commerce” by adulterating Bombay with
grains of paradise, in violation of section 562.455, and then know-
ingly selling it to Marrache and the other class members in viola-
tion of section 500.04(1)–(3), which prohibits (1) the “manufacture,
sale or delivery, holding or offering for sale of any food that is adul-
terated,” (2) the adulteration of any food, and (3) the receipt in
commerce of any food that is adulterated. Marrache contends that
Defendants’ violations of sections 562.455 and 500.04 serve as pred-
icates for his FDUTPA claims under section 501.203(3)(c), even
though neither statute contains any language expressly stating that
it qualifies as a FDUTPA violation. Marrache further argues that
he has alleged “actual damages,” as he and the other class members
suffered actual damages by purchasing an illegal product—Bom-
bay—that is “worthless” from Defendants. Below, the district
court found that Marrache had not sufficiently alleged actual dam-
ages because section 562.455 was preempted by federal law,
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20-10677 Opinion of the Court 23
making it legal for Defendants to sell Bombay containing grains of
paradise, and that, as such, the Bombay was not “worthless.”
Here, we need not decide whether violations of sections
562.455 and 500.04 proscribe unfair, deceptive, or unconscionable
acts or practices that qualify as FDUTPA violations because Mar-
rache’s claims against Defendants fall under FDUTPA’s safe harbor
provision. See Fla. Stat. § 501.212. Specifically, Florida Statute
§ 501.212(a) provides that FDUTPA does not apply to “[a]n act or
practice required or specifically permitted by federal or state law.”
(emphasis added). Thus, an act specifically permitted by federal
law cannot serve as the basis for a FDUTPA claim. While the Food
Additives Amendment and its implementing regulations do not
preempt section 562.455, the FDA has issued regulations determin-
ing that grains of paradise are designated GRAS pursuant to its au-
thority under the Food Additives Amendment. 21 C.F.R. §§ 182.1,
182.10; see also 21 U.S.C. § 348 (explaining that a food additive is
not deemed unsafe for purposes of 21 U.S.C. § 342(a)(2)(C) and that
a food will not be considered adulterated where there is in effect a
regulation issued prescribing the conditions under which the addi-
tive may be safely used). Because grains of paradise is a substance
that is specifically permitted under federal law to be included in al-
cohol, FDUTPA’s safe harbor applies and Marrache’s FDUTPA
claims against Defendants are barred by the safe harbor provision
of FDUTPA. Cf. Prohias v. AstraZeneca Pharms., L.P., 958 So. 2d
1054, 1056 (Fla. Dist. Ct. App. 2007) (finding that FDUTPA’s safe
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24 Opinion of the Court 20-10677
harbor applied where a drug’s labeling was approved by the FDA
and thus “specifically permitted” by federal law).
3. Actual Damages under FDUTPA
Even if the FDUTPA claims did not fall under FDUTPA’s
safe harbor provision, the district court found that dismissal was
proper as Marrache failed to state a claim for actual damages under
FDUTPA. As the district court found, Marrache did not allege that
he and the other class members: (1) were unable to drink the Bom-
bay, as the complaint alleges that they consumed the alcohol, (2)
unsuccessfully sought a refund for or complained of the Bombay
to Defendants, or (3) suffered any side effect, health issue, or harm
from consuming the Bombay containing grains of paradise. Mar-
rache also did not allege that the resale value of Bombay depreci-
ated because it contained grains of paradise. Rather, he alleges that
he and the other class members suffered actual damages by “pur-
chas[ing] . . . an illegal product which is worthless.”
Marrache argues that his allegation that the Bombay is
worthless is sufficient to state a claim for actual damages under
FDUTPA. Specifically, he argues that he was only required to
plead a “direct allegation” of actual damages—and not specific
facts—under the “notice pleading” requirement articulated by
Conley v. Gibson, 355 U.S. 41 (1957), and cited to by this Court in
Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 683–
84 (11th Cir. 2001). But as the Supreme Court has clarified in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), Federal Rule of Civil Procedure 8’s
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20-10677 Opinion of the Court 25
pleading standard “demands more than an unadorned, the-defend-
ant-unlawfully-harmed-me accusation,” and, “[t]o survive a mo-
tion 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. at 678 (quoting Twombly, 550 U.S. at 570). Under this
standard, we look to see whether the plaintiff has pled “factual con-
tent that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. While “[t]he
plausibility standard is not akin to a ‘probability requirement,’ . . .
it asks for more than a sheer possibility that a defendant has acted
unlawfully,” and “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line be-
tween possibility and plausibility.’” Id. (quoting Twombly, 550
U.S. at 556–57). Indeed, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.” Id. Therefore, we must examine whether Marrache has
pled sufficient facts to state a plausible claim for actual damages.
In support of his claim for actual damages, Marrache princi-
pally relies on this Court’s decision in Debernardis v. IQ Formula-
tions, LLC, 942 F.3d 1076 (11th Cir. 2019). In Debernardis, the
plaintiffs purchased dietary supplements containing a “new dietary
ingredient,” as defined by the FFDCA and the Dietary Supplement
Health and Education Act (“DSHEA”). See id. at 1080–82. The
plaintiffs alleged that the supplements were adulterated as defined
by the FFDCA and DSHEA, i.e., presumed unsafe for human con-
sumption, by the new dietary ingredient, and that, as such, the sale
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26 Opinion of the Court 20-10677
of those supplements was illegal in the United States. See id. at
1081–82. The plaintiffs brought a putative class action against the
defendants based on the purchase of the supplements and asserted,
among other things, claims under FDUTPA, alleging that “the de-
fendants had engaged in unlawful, deceptive, and unjust conduct
when they sold the supplements.” Id. at 1082. As to harm, the
plaintiffs alleged that “[e]ach plaintiff suffered an injury by purchas-
ing supplements that could not be ‘legally sold or possessed’ and
had ‘no economic or legal value’” and that “[b]ecause the supple-
ments had no economic value, each plaintiff paid an ‘unwarranted
amount’ to purchase the supplements.” Id. The defendants moved
to dismiss the complaint for lack of standing—specifically, for fail-
ing to allege an injury in fact—and the district court dismissed the
complaint. Id. at 1083.
On appeal, this Court reversed the dismissal for lack of
standing. Id. at 1089. This Court explained that an economic in-
jury qualifies as a concrete injury to establish an injury in fact and
that, under FDUTPA, “[a] person experiences an economic injury
when, as a result of a deceptive act or an unfair practice, he is de-
prived of the benefit of his bargain.” Id. at 1084. This Court ex-
plained that, under the benefit of the bargain theory, damages are
calculated by determining “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 condition in which it should have been
delivered according to the contract of the parties” and that “[o]rdi-
narily, when a plaintiff purchases a product with a defect, the
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20-10677 Opinion of the Court 27
product retains some value, meaning her benefit-of-the-bargain
damages are less than the entire purchase price of the product.” Id.
(quoting Heller, 454 So. 2d at 585). However, this Court recog-
nized an exception when a “product is rendered valueless as a result
of a defect,” as “[w]hen a plaintiff receives a worthless product, his
benefit of the bargain damages will be equal to the entire purchase
price of the product.” Id. (quoting Heller, 454 So. 2d at 585). Based
on this theory, this Court “accept[ed], at least at the motion to dis-
miss stage, that a dietary supplement that is deemed adulterated
and cannot lawfully be sold has no value.” Id. at 1085. By purchas-
ing an adulterated dietary supplement that Congress judged insuf-
ficiently safe for human consumption and banned from sale, the
purchasers “received a defective product that had no value” and
had suffered an economic loss. See id. at 1085–86. This Court,
however, cautioned that it was “not deciding today whether a con-
sumer who alleges he purchased a product that could not legally
be sold under a different statutory scheme acquired a worthless
product” and that its decision was “limited to the specific facts al-
leged in this case—that the plaintiffs purchased dietary supple-
ments that Congress, through the [F]FDCA and DSHEA, had
banned from sale with the purpose of preventing consumers from
ingesting an unsafe product.” Id. at 1088.
We decline to extend Debernardis’s limited holding, as this
case is distinguishable. The Court in Debernardis emphasized
“Congress’s judgment” in banning the adulterated supplement as
the basis for the supplement having no value at the motion to
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28 Opinion of the Court 20-10677
dismiss stage. See id. at 1085. Unlike Debernardis, the FDA, as
authorized by Congress, has specifically determined that grains of
paradise is safe to be included in alcohol under its GRAS regime for
food additives. In other words, Congress has judged alcohol con-
taining grains of paradise safe for human consumption. Thus, even
if the sale of Bombay containing grains of paradise is illegal under
Florida law, Bombay certainly is not “worthless” in other states, as
it is permitted to be sold under federal law and is thus not valueless
under the benefit-of-the-bargain theory for actual damages under
FDUTPA. Under Florida law, “[t]he members of [a] putative class
who experienced no actual loss have no claim for damages under
FDUTPA.” Rollins, 951 So. 2d at 873. Indeed, FDUTPA “does not
provide for the recovery of nominal damages, speculative losses,
or compensation for subjective feelings of disappointment.” Bar-
ton, 988 So. 2d at 86 (quoting Rollins, 951 So. 2d at 873). Because
FDUTPA requires an aggrieved person to suffer actual damages,
we conclude that Marrache has not pled a plausible claim for actual
damages under FDUTPA.
Accordingly, we affirm the district court’s dismissal of Mar-
rache’s FDUTPA claims because Marrache’s FDUTPA claims fall
under FDUTPA’s safe harbor provision. In the alternative, we also
conclude that affirmance of the district court’s dismissal of Mar-
rache’s FDUTPA claims is also warranted because Marrache failed
to state a plausible claim for actual damages under FDUTPA
claims. We next address Marrache’s unjust enrichment claim
against Defendants.
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20-10677 Opinion of the Court 29
C. Whether Marrache states a claim for unjust enrichment
Under Florida law, a claim for unjust enrichment is “to pre-
vent the wrongful retention of a benefit, or the retention of money
or property of another, in violation of good conscience and funda-
mental principles of justice or equity.” State Farm Fire & Cas. Co.
v. Silver Star Health & Rehab, 739 F.3d 579, 584 (11th Cir. 2013)
(quoting Butler v. Trizec Props., Inc., 524 So. 2d 710, 711 (Fla. Dist.
Ct. App. 1988)). “A claim for unjust enrichment has three ele-
ments: (1) the plaintiff has conferred a benefit on the defendant; (2)
the defendant voluntarily accepted and retained that benefit; and
(3) the circumstances are such that it would be inequitable for the
defendants to retain it without paying the value thereof.” Virgilio
v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012); accord
Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237, 1241 n.4
(Fla. 2004). Additionally, “to prevail on an unjust enrichment
claim, the plaintiff must directly confer a benefit to the defendant.”
Kopel v. Kopel, 229 So. 3d 812, 818 (Fla. 2017); accord Extraordi-
nary Title Servs., LLC v. Fla. Power & Light Co., 1 So. 3d 400, 404
(Fla. Dist. Ct. App. 2009).
In his unjust enrichment claim, Marrache alleged that he and
the other class members had “conferred direct benefits to the De-
fendants by purchasing Bombay . . . from Defendants at Winn-
Dixie” and that Defendants “appreciated that benefit conferred . . .
by virtue of [their] retention of the money paid for the Bombay.”
Marrache further alleged that “[i]t is inequitable for Defendants to
retain the benefit as [Marrache] did not receive what [he] bargained
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30 Opinion of the Court 20-10677
for: to wit a product which did not violate [sections 562.455 and
500.04(1)–(3)]” and that Defendants were unjustly enriched. In its
order, the district court found that Marrache failed to state a claim
for unjust enrichment because section 562.455 was preempted by
federal law and the Bombay therefore was not worthless.
Although section 562.455 is not preempted under federal
law, we conclude that the district court did not err in finding that
Marrache failed to state a claim for unjust enrichment. In his
amended complaint, Marrache did not allege that he and the other
class members: (1) could not or did not drink the Bombay, (2) un-
successfully sought a refund for or complained about the Bombay,
or (3) suffered any side effect, health issue, or harm from consum-
ing the Bombay containing grains of paradise. Rather, Marrache
alleged that the Bombay was “worthless” based on section
562.455’s prohibition of the adulteration of alcohol with grains of
paradise, a product which he claims that he and the other class
members did not “bargain[] for.” As alleged by Marrache in his
amended complaint, however, potential purchasers of Bombay are
notified of the inclusion of grains of paradise in Bombay, as that
fact is “prominently etched on each of its distinctive blue bottles.”
And Marrache does not allege that Defendants concealed that fact
from the class. Thus, Marrache and the other class members did in
fact receive what they bargained for (and consumed, according to
the amended complaint)—a gin that contains grains of paradise—a
fact that was plainly and prominently stated on its bottles. Because
Marrache has not included any allegations as to how it would be
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20-10677 Opinion of the Court 31
“inequitable” for Defendants to retain the benefit they received
from Marrache and the other class members’ purchase of Bombay,
we therefore conclude that Marrache has failed to state a claim as
to the third prong of his unjust enrichment claim.
In addition, as to his claim against Bacardi, Marrache failed
to allege that he and the other class members conferred a direct
benefit to Bacardi. As alleged in his amended complaint, Marrache
and the other class members purchased bottles of Bombay from
Winn-Dixie, not Bacardi. At most, Marrache has alleged that he
and the other class members conferred an indirect benefit to
Bacardi and, as such, cannot satisfy the first element of an unjust
enrichment claim against Bacardi. Cf. Extraordinary Title Servs., 1
So. 3d at 404 (affirming the dismissal of an unjust enrichment claim
against a Florida utility company’s parent company where the
plaintiff had only paid, and only received benefits from, the Florida
utility company and thus had not conferred a direct benefit to the
parent company). Accordingly, we affirm the district court’s dis-
missal of Marrache’s unjust enrichment claims against both De-
fendants.
D. Dismissal of the Amended Complaint With Prejudice
Lastly, Marrache asserts that the district court abused its dis-
cretion in dismissing his amended complaint with prejudice. How-
ever, this Court “has found that denial of leave to amend is justified
by futility when the complaint as amended is still subject to dismis-
sal.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.
1999). Because any attempt by Marrache to amend the claims in
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32 Opinion of the Court 20-10677
his amended complaint would be futile, we conclude that the dis-
trict court did not abuse its discretion in dismissing the amended
complaint with prejudice. See Hall, 367 F.3d at 1263
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s or-
der dismissing with prejudice Marrache’s amended class action
complaint against Defendants.
AFFIRMED.