Exculpatory clause / AIN Convention January 20, 2026

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Exculpatory clause / AIN Convention
January 20, 2026
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AIN Convention
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    I look forward to seeing the AIN Members at the AIN Buying Group annual Live and Learn Convention starting January 21, 2026 in the Bahamas.   If you have time in your Passport to Profit meetings please add Kirschenbaum & Kirschenbaum to your schedule.  If more convenient contact Stacy Spector, Esq at 516 747 6700 x 304 for other available times to meet.  I'm sure it's going to be a first rate great convention.  You should have received a special invitation for discounts available from now until January 26, 2026 for contract orders and joining the concierge program.  Contact Kathleen Lampert 516 747 6700 x 319 or KLampert@Kirschenbaumesq.com for the sale and Eileen Wagda 516 747 6700 x 312 or EWagda@Kirschenbaumesq.com for assistance with contracts.
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Exculpatory clause
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      After you're done haggling over the indemnity clause [read yesterday's article] you can then deal with the exculpatory clause. The indemnity issue involves you as an insurer, the exculpatory clause disclaims liability if caused by your breach of the agreement, your negligence in performance or negligence in non-performance. That is a horse of another color for many of your subscribers and their attorneys. Lucky for you that Judges see it a bit differently and, often kicking and screaming. reluctantly enforce the provision. They will look for any reason not to enforce it. Don't give them a reason, update your contracts today using Kirschenbaum Contracts TM.
         There are plenty of cases across the country on topic. Let's take a look at two recent cases.

Missouri
United States District Court, W.D. Missouri, Western Division.

Apartment resident trips on utility line, sues landlord who produces lease with exculpatory clause. Complaint alleges negligence and gross negligence. Federal Judge found: exculpatory clause enforceable if clear, as it was here; Missouri does not recognize gross negligence apart from negligence; exculpatory clause not enforce if reckless conduct, which was not shown here; complaint dismissed.

Florida
United States District Court, S.D. Florida

Member and guest sue in class action alleging "Defendant sends unsolicited text messages to consumers even “after they have opted out” from Defendant's solicitations. Id. at ¶ 2. In addition, Plaintiffs allege that Defendant “engages in telemarketing without the required policies and procedures, and training of its personnel engaged in telemarketing."
      The Federal Judge acknowledges that Florida enforces exculpatory clauses, reluctantly, construing the provision against enforcement, and that is must be clear and unambiguous. A tortious decision but the Judge dismissed the case by the member, but not the guest, because they signed different exculpatory provisions.
       Only reason to mention this case is to emphasize that judges will look for ways to avoid enforcement. Don't give them one.
      The cases are below. Not really worth your time reading.
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2025 WL 3736444

Only the Westlaw citation is currently available.

United States District Court, W.D. Missouri, Western Division.

ANDRE KIDD, Plaintiff,

v.

CANYON CREEK APARTMENTS, LLC., Defendant.

Case No. 4:24-cv-00453-FJG

Filed 09/17/2025

ORDER

Fernando J. Gaitan, Jr. United States District Judge

*1 Currently pending before the Court is defendants' Motion for Judgment on the Pleadings (Doc. #13).

I. BACKGROUND

Plaintiff Kidd resides at the Canyon Creek Apartments, 9313 Bales Ave., # 101, Kansas City, Missouri. (Plaintiff's Petition, ¶ 1). Plaintiff is handicapped and walks with a cane (Plaintiff's Petition, ¶ 4). On multiple occasions, plaintiff complained to defendant regarding broken tiles in the entryway of the common area outside of his apartment and requested that defendant repair the tiles. (Plaintiff's Petition, ¶¶ 5, 7). On August 20, 2021, plaintiff entered the common area of his apartment building, tripped on the broken tiles and fell injuring his back, shoulder, neck, arm, leg, ankle and foot. (Plaintiff's Petition, ¶ 9). Plaintiff filed a one count petition against Canyon Creek Apartments, alleging that defendant was negligent in maintaining the walkways and should have taken precautions to warn of the hidden dangerous condition of the broken tiles. Defendant removed the action to this court on the basis of diversity jurisdiction.

II. STANDARD

Under Rule 12(c), “after the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings.” The standard of review for judgment on the pleadings under Rule 12(c) is the same as dismissal under Rule 12(b)(6), whereby a petition must allege enough facts to state a claim to relief that is plausible on its face. Foley Indus., Inc. v. Nelson, No. 4:21-00309-CV-RK, 2022 WL 1307091, at *3 (W.D. Mo. May 2, 2022) (citations and quotation marks omitted). The movant must show “that there are no material issues of fact and that it is entitled to judgment as a matter of law.” Levitt v. Merck & Co., Inc., 914 F.3d 1169, 1171 (8th Cir. 2019) (citation omitted). All facts pleaded in the petition are to be viewed as true, and the Plaintiffs are to be granted all reasonable inferences. Id. (citation omitted).

III. DISCUSSION

Defendant moves for judgment on the pleadings arguing that plaintiff's negligence claim is barred by the exculpatory provision in plaintiff's lease. Defendant states that the Missouri Supreme Court has acknowledged that exculpatory provisions are “not prohibited as against public policy” and these provisions will be enforced if the provision includes “clear and explicit language ...to absolve a person from such liability.” Alack v. Vic Tanny Int'l of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). In this case, defendant argues that the exculpatory provision in plaintiff's lease was sufficiently conspicuous because it was separated from the rest of the contract on its own page, the exculpatory paragraph is written in larger font than the rest of the contract, all of the text is bolded and in capital letters and the term “negligence” is both italicized and underlined. Additionally, the last sentence of exculpatory paragraph states: “BY SIGNING BELOW, RESIDENT ACKNOWLEDGES THAT HE/SHE HAS READ AND UNDERSTANDS THE FOREGOING EXCULPATIONS, RELEASE, AND AGREEMENT TO INDEMNIFY.” Immediately following the exculpatory paragraph is a signature line for the resident to sign and date indicating their understanding and agreement. Plaintiff's signature and the date of 8-4-2020 appear directly below the exculpatory clause.

Plaintiff argues that defendant's motion should be denied for three reasons: 1) the clause is ambiguous because it does not indicate whether it applies to future, past or present claims; 2) the clause releases defendant from intentional torts and gross negligence and 3) plaintiff pled gross negligence and reckless conduct, thus the exculpatory clause does not apply to these causes of action.

With regard to the first argument regarding timeframe, defendant notes and the Court agrees that the clause is broad enough to cover future, past and present claims. The clause states: “OWNER AND/OR LANDMARK REALTY ...SHALL NOT BE LIABLE FOR ANY DAMAGES OR INJURY.... ” (Doc. # 4-1)(emphasis added). Later in the paragraph the clause continues: “RESIDENT AGREES TO EXONERATE AND SAVE HARMLESS OWNER, LANDMARK, THEIR EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITY.... ” Id. (emphasis added). In Hunter v. KC Coach House, LLC, No. 23:cv-00759-DGK, 2024 WL 2805320 (W.D.Mo. May 31, 2024), the Court considered an exculpatory clause which was identical to the one at issue. The plaintiff in Hunter argued that the language was ambiguous because it used general phrases such as “any and all liability” “any like or different casualty” and “any damages or injury.” The plaintiff argued that this language made the nature and scope of the claims released unclear. The Court rejected this argument, stating “the provision's inclusion of more generalized phrases does not render it ambiguous.... the general exculpatory language does not purport to relieve Defendants of claims they cannot release.” Id. at *3. The Court found that the exculpatory provision in the lease agreement “meets the standard set forth by the Missouri Supreme Court in Allack [v. Vic Tanny Int'l of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996) and] is nearly identical to the exculpatory provision upheld by the Missouri Court of Appeals in Abbott [v. Epic Landscape Prods. L.C., 361 S.W.3d 13,17-18 [(Mo.App. 2011)]. The Court agrees that the language contained in the clause at issue is not ambiguous because it contains the phrases “any” or “any and all.”

The Court also rejects plaintiff's second argument that the clause is objectionable because it releases claims for intentional torts and gross negligence or any other cause of action. Plaintiff argues that the clause does not separate negligence claims from gross negligence claims. However, as the Court noted in Hill v. Lincoln Property Co., No. 4:10-CV-675DDN, 2011 WL 65929 (E.D.Mo. Jan. 10, 2011), an exculpatory clause was enforceable despite any possible “latent ambiguities” created by its broad language. Id. at *6. The Court in Hill referenced Milligan v. Chesterfield Village GP LLC, 239 S.W.3d 613, 616 (Mo.App. 2007). In that case, the Court noted that because the clause “clearly, unambiguously, unmistakably, and conspicuously released the lessor from the alleged negligence, any latent ambiguities created by the other language of the clause did not invalidate the express waiver from liability for the alleged conduct.” Id. at 616-21. The Court agrees and finds that as noted above, the language of the clause in this case is virtually identical to the language in other clauses that have been found to be unambiguous and clearly states what claims are being released. The Court does not find that there are any latent ambiguities which would invalidate the exculpatory provision at issue.

*3 In his third point, plaintiff also argues that he pled a case for gross negligence and reckless conduct in his petition and because exculpatory clauses cannot waive these types of claims, his petition should not be dismissed. In State ex rel. Love v. Cunningham, 689 S.W.3d 489, 497-98 (Mo.banc 2024), the Court stated, “Missouri does not recognize a cause of action for gross negligence ....” In Ferbet v. Hidden Valley Golf and Ski, Inc., 618 S.W.3d 596 (Mo.App. 2020), the Court noted that in Alack, 923 S.W.2d 330, the Court distinguished between ordinary negligence and gross negligence in the context of exculpatory clauses. Id. at 603 n.1. But the Missouri Supreme Court in DeCormier v. Harley-Davidson Motor Co. Grp. Inc., 446 S.W.3d 668, 671 (Mo. banc 2014), later eliminated this distinction noting that “Missouri courts do not recognize degrees of negligence at common law.” The Court in Ferbet noted that “Decormier permits exculpatory clauses to shield parties from negligence but holds exculpatory clauses provide no protection for reckless conduct or for intentional torts.” Id.

In Moore v. City of O'Fallon, 681 S.W.3d 715 (Mo. Ct. App. 2023), the court explained:

“Recklessness is an aggravated form of negligence.” Fowler v. Phillips, 504 S.W.3d 107, 110 (Mo. App. E.D. 2016). As with negligence, a primary element of recklessness is whether the defendant owed a personal duty of care to the plaintiff, and the analysis for the existence of that duty is the same in either instance. Id. Missouri recognizes recklessness as an intentional tort. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139 (Mo. App. E.D. 1999).

Id. at 723–24. In Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126 (Mo.App. 1999), the Court stated that Missouri recognizes a cause of action for recklessness which the Supreme Court defined as:

Reckless conduct may be negligent in that it is unreasonable but it is and must be something more than unreasonable, “it must contain a risk or harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent.” 2 Restatement, Torts, p. 1294. “The actor's (defendant's) conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.” 2 Restatement, Torts, Secs, 500, 501.

Id. at 139-40 (citing Nichols v. Bresnahan, 212 S.W.2d 570, 573 (Mo. 1948)).

After reviewing plaintiff's petition, the Court finds that plaintiff has not sufficiently alleged a claim for recklessness. Plaintiff's petition alleges that “[m]onths prior to his injury, Plaintiff Kidd complained to defendant Canyon Creek on multiple occasions about the broken tiles.” (Plaintiff's Petition, ¶ 5). “Months prior to his injury, plaintiff Kidd made the request to defendant Canyon Creek to fix the broken tiles.” (Petition ¶ 7). Plaintiff further alleges that Canyon Creek “knew or by the exercise of ordinary care should have known of the dangerous condition of the aforementioned walkway in sufficient time in which defendant Canyon Creek could have and should have taken precautions to have warned plaintiff Kidd of the hidden dangerous condition of the same ...” (Petition ¶ 12) and “knew or by the exercise of ordinary care should have known of the dangerous and concealed condition of the aforementioned walkway in sufficient time in which defendant Canyon Creek could have and should have taken precautions to remedy the hidden dangerous condition of the same ...” (Petition ¶ 13). As noted by the court in Hatch, 990 S.W.2d 126, “[r]ecklessness is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care....It is applied to conduct which is negligent, rather than intentional, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended.” Id. at 139 (internal citations omitted). In Nichols, 212 S.W.2d at 573 the Court noted: “Reckless conduct ... must be something more than unreasonable, it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable ....” Id. at 573 (internal quotations and citations omitted).

*4 The Court finds that plaintiff has alleged only a negligence claim and has failed to sufficiently allege that defendant Canyon Creek's conduct was reckless. Accordingly, the Court finds that the claim in plaintiff's petition is barred by the exculpatory clause contained in the Lease Agreement which he signed.

IV. Conclusion

Accordingly, for the reasons stated above, the Court hereby GRANTS defendant Canyon Creek's Motion for Judgment on the Pleadings (Doc. # 13).

Kansas City, Missouri

All Citations

Slip Copy, 2025 WL 3736444

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

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2025 WL 3755406

Only the Westlaw citation is currently available.

United States District Court, S.D. Florida.

Jeniel PETROVICH and Mauricio Cardero, Individually and on behalf of all others similarly situated, Plaintiffs,

v.

YF FC OPERATIONS, LLC, Defendant.

Case No. 24-60825-CIV-SINGHAL

Signed May 5, 2025

Filed May 6, 2025

ORDER

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE

*1 THIS CAUSE has come before the Court on Defendant YF FC Operations, LLC's (“Defendant”) Motion to Dismiss Plaintiffs’ Complaint (the “Motion”) (DE [20]), filed July 10, 2024. Plaintiffs Jeniel Petrovich (“Petrovich”) and Mauricio Cardero (“Cardero”) (“Plaintiffs,” collectively) filed their Response in Opposition to Defendant's Motion to Dismiss (the “Response”) (DE [21]) on July 23, 2024. Defendant submitted its Reply in Support of Its Motion to Dismiss Plaintiffs’ Complaint (the “Reply”) (DE [28]) on August 6, 2024. For several months, the proceedings in this case were Stayed as the Parties conducted settlement negotiations (DE [36]). On April 21, 2025, the Stay was vacated. (DE [41]). As such, the Motion is now ripe for adjudication. The Court has reviewed the Motion and record and is otherwise fully advised in the premises.

BACKGROUND

Plaintiffs are residents of Florida, and Defendant is a foreign corporation with its principal office in Deerfield Beach, FL. (DE [1] at ¶¶ 6-8). Plaintiffs bring forward three counts in this putative class action pursuant to the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq. (“TCPA”) and the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, arguing that Defendant sends unsolicited text messages to consumers even “after they have opted out” from Defendant's solicitations. Id. at ¶ 2. In addition, Plaintiffs allege that Defendant “engages in telemarketing without the required policies and procedures, and training of its personnel engaged in telemarketing.” Id. Citing the “invasion of privacy, harassment, aggravation, and disruption of daily life,” Plaintiffs now seek injunctive relief and statutory damages. Id. at ¶ 3. This Court has federal question jurisdiction, given this action arises under the TCPA. Id. at ¶ 4.

LEGAL STANDARD

At the pleading stage, a complaint must contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a) does not require “detailed factual allegations,” it does require “more than labels and conclusions ... a formulaic recitation of the cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, “factual allegations must be enough to raise a right to relief above the speculative level” and must be sufficient “to state a claim for relief that is plausible on its face.” Id. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In considering a Rule 12(b)(6) motion to dismiss, the court's review is generally “limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002)). Courts must review the complaint in the light most favorable to the plaintiff, and it must generally accept the plaintiff's well-pleaded facts as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). However, pleadings that “are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

DISCUSSION

With its Motion, Defendant seeks dismissal of Plaintiffs’ Complaint (DE [1]). Here, Defendant offers several arguments: (i) that Plaintiffs fail to allege facts establishing the use of an automated telephone dialing system (“ATDS”); (ii) that Plaintiffs agreed to a limitation of liability and release; (iii) that Plaintiff Cardero waived participation in a class; and (iv) that Plaintiff Cardero did not comply with a condition precedent to arbitration. The Court has evaluated each argument, with corresponding analysis provided below.

Plaintiffs Make Sufficient Allegations Regarding the Use of an ATDS

Defendant reasons that Plaintiffs “fail to establish [a] necessary element” for claims under either the TCPA or FTSA, namely the Defendant's use of an ATDS. (DE [20] at p. 2-3). Plaintiffs reject this argument, maintaining that neither of their first two Counts would require proof of an automated platform. (DE [21] at p. 3). Plaintiffs concede that their Count III would require proof of an automated platform but argue that Plaintiff Petrovich has plausibly alleged Defendant's use of an ATDS. Id. at p. 3-4.

The Court agrees with Plaintiffs’ rebuttal. Count I centers on violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d), neither of which require alleging the use of an ATDS. Camunas v. National Republican Senatorial Committee, a case on which Defendant relies, makes clear the requirements for a claim under 47 U.S.C. § 227(c): plaintiffs “must plead that (1) they receive[d] multiple calls within twelve months, (2) by or on behalf of the same entity, (3) on a residential phone registered on the [Do Not Call] list.” Camunas v. National Republican Senatorial Committee, 541 F.Supp. 3d 595, 604 (E.D. Pa. 2021) (citations omitted). As is evident, Plaintiffs would not need to allege the use of an ATDS for a § 227(c) claim. Nor would they need to under § 64.1200(d). See Forteza v. Pelican Investment Holdings Group, LLC, 2023 WL 9199001, at *6 (E.D. Tex. Dec. 27, 2023) (“A plaintiff need not plead Registry membership or ATDS capacity to state a claim under § 64.1200(d)). Therefore, Plaintiffs’ Count I withstands dismissal. And on a similar note, Plaintiffs’ Count II survives dismissal on this basis, because Fla. Stat. § 501.059(5) makes no mention of an ATDS.

As for Count III, Plaintiffs have included sufficient factual allegations regarding the use of an ATDS for a claim under Fla. Stat. § 501.059(8). In their Complaint, Plaintiffs mention that “Defendant openly admits” on its website that it utilizes an automatic telephone dialing system to transmit text messages. (DE [1] at ¶ 32). Based on the persuasive, unrebutted authority that Plaintiffs include, this, on its own, is a sufficient factual basis. See Zononi v. CHW Group, Inc., 2023 WL 2667941, at *4 (S.D. Fla. 2023) (“... the FAC provides some of the very detail the Davis court found lacking, i.e., information on Defendant's website indicating that it uses automated dialing equipment as part of its business[.]”). Defendant notably does not bolster this specific argument further in its Reply.

The Exculpatory Clause Must Be Construed Against Defendant

Next, Defendant argues that Plaintiffs both agreed to the terms and conditions of patronizing Defendant's gym—terms that included “valid limitations of liability that encompass Plaintiffs’ claims and require dismissal.” (DE [20] at p. 5). Plaintiffs agree that the terms and conditions relate to the “ ‘patronizing [of] Defendant's gym,’ ” but they contend that the clauses Defendant cites are not applicable to this action, since they “release Defendant only for injuries sustained while visiting one of Defendant's fitness facilities.” (DE [21] at p. 6).

*3 Typically, a court's review on a motion to dismiss is “limited to the four corners of the complaint.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002). Courts can consider “only the complaint itself and any documents referred to in the complaint which are central to the claims.” Wilchombe, 555 F.3d at 959 (referencing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)). In the current circumstances, Plaintiffs did not refer to the agreements in their Complaint, nor were the agreements included as attachments. Still, the Court recognizes Defendant's remark that, but for the agreements, Defendant “would not have any opportunity to contact Plaintiffs...” (DE [20] at p. 6, n. 1). Plaintiffs do not seem to dispute this, in fact, is how Defendant acquired Plaintiffs’ contact information; rather Plaintiffs maintain their claims fall outside the scope of the clauses in question. This dynamic informs the Court's consideration of Defendant's remaining grounds for dismissal.

As to Plaintiff Cardero, who executed a membership agreement with the Defendant, the clause reads:

LIMITATION OF LIABILITY & FULL RELEASE OF YOUFIT: You agree to fully release Youfit, its owners, employees, affiliates, subsidiaries, authorized agents, and independent contractors from any and all liability, claims, demands, or other actions that You may have for injuries, disability, death, or any other actions that You may have for injuries, disability, or death or other damages of any kind, including, but not limited to, direct, special, incidental, indirect, punitive, or consequential damages, whether arising in tort, Agreement, negligence, or breach of warranty arising out participation of any services offered by Youfit, the use of any of its facilities or equipment, including but not limited to any physical activities, personal training services, participation in any group classes, or any other act even if caused by the negligence or fault of Youfit, its owners, employees, affiliates, subsidiaries, authorized agents, or independent contractors. You are urged to see a doctor before you commence any physical activity and to follow a doctor's advice as to your health, fitness, or physical capabilities. Further, you are urged to have this Agreement reviewed by an attorney before signing, and your signature and/or initials indicates your acceptance of all the terms and conditions in this Agreement, without limitation.

(DE [20-1] at p. 3). And for Plaintiff Petrovich, the Guest Release Waiver included the following language: “You expressly agree to release and discharge the club, and all affiliates, employees, agents, representatives, successors and/or assigns, from any and all claims or causes of action.” (DE [20-2] at p. 2).

Courts in Florida are generally not inclined towards exculpatory provisions, unless, among other details, “... the clause's provisions are clear and unambiguous.” Pier 1 Cruise Experts v. Revelex Corp., 929 F.3d 1334, 1344 (11th Cir. 2019) (internal quotations omitted). To be unambiguous, “an ordinary and knowledgeable person will know what he is contracting away.” Id. (internal quotations omitted). That is not necessarily applicable here, since the clause could reasonably be understood to apply only to injuries from frequenting a Youfit facility. This is an irritant to Defendant's argument, because the Court already must construe the clause in a light favorable to Plaintiffs. See Adapt Programs, LLC v. Veritable Billing Services, LLC, 2023 WL 3778251, at *7 (S.D. Fla. 2023) (quoting Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th Dist. Ct. App. 2006) (“Exculpatory clauses are strictly construed against the party seeking relief from liability.”)). Defendant does nothing to undermine this construal in its Reply, content to “[rely] on the arguments set forth in its Motion to Dismiss...” (DE [28] at p. 1). So, at this stage, these grounds would not be appropriate for dismissal.

The Membership Agreement Creates Roadblocks for Plaintiff Cardero's Claims

*4 Defendant further argues that Plaintiff Cardero “executed a class action waiver that precludes his participation in the subject lawsuit” in the Membership Agreement. (DE [20] at p. 6). As such, Defendant concludes that dismissal is appropriate, because Plaintiff Cardero “cannot join any claims he may have with those of others in the form of a class action...” Id. at p. 7. Plaintiffs response is short: they argue the class action waiver does not apply, because the provision supposedly applies only to claims “IN ANY ARBITRATION...” (DE [21] at p. 10; [20] at p. 6; [20-1] at p. 3). In rebuttal, Defendant provides clarity to its argument, making the case that Plaintiffs “gloss[ ] over the fact that Mr. Cardero's only option is to arbitrate.” (DE [28] at p. 3).

Relatedly, Defendant advises that Plaintiff Cardero did not allege “notifying YouFit of this claim by demanding arbitration” nor provide a demand for arbitration; Defendant characterizes this as a failure to “comply with a condition precedent in the Membership Agreement.” (DE [20] at p. 7-8). Like before, Plaintiffs are dismissive, insisting “there is no condition precedent that Plaintiff was required to satisfy applicable to the claims in this case.” (DE [21] at p. 11). Defendant responds by reiterating its position that “Mr. Cardero's only option is arbitration” but he has not complied with the appropriate provisions to commence that process. (DE [28] at p. 3).

Defendant grounds its arguments in the arbitration provision's language. See (DE [20-1] at p. 3) (“Member agrees that any dispute, controversy, or claim arising out of or relating in any way to the Membership Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability, or breach of this Membership Agreement, shall be exclusively resolved by binding arbitration...) (emphasis added); see also id. (“MEMBER UNDERSTANDS AND AGREES THAT THE MEMBER AND THE CLUB ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT.”). Hence, the Court's determination will hinge on a specific query: whether Plaintiff Cardero's TCPA or FTSA claims ‘arose out of or related in any way’ to the Membership Agreement.

The Eleventh Circuit addressed this issue in Bahamas Sales Assoc., LLC v. Byers, determining that a claim ‘relates to’ a contract when “the dispute occurs as a fairly direct result of the performance of contractual duties.” Bahamas Sales Assoc., LLC v. Byers, 701 F.3d 1335, 1340-41 (11th Cir. 2012) (quoting Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001)) (internal quotations omitted). The Eleventh Circuit clarified that “the fact that a dispute could not have arisen but for an agreement does not mean that the dispute necessarily ‘relates to’ that agreement.” Bahamas Sales Assoc., LLC, 701 F.3d at 1341 (citing Int'l Underwriters AG v. Triple I: Int'l Invs., Inc., 533 F.3d 1342, 1347 (11th Cir. 2008)). Rather, there needed to be a “direct relationship” between the claim and the contract. Bahamas Sales Assoc., LLC, 701 F.3d at 1341 (referencing Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218-19 (11th Cir. 2011) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (explaining that “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, it would have no limiting purpose...”))) (internal quotations omitted). On this basis, the Eleventh Circuit did not find Byers’ claim of fraudulent appraisals by the mortgage entities to be directly related to the purchasing agreement between Byers and Ginn–LA West End Limited. The court made note, for instance, that the mortgage entities were not even signatories to the purchase agreement.

*5 The existing circumstances present a close call, but the Court finds Plaintiff Cardero's claims to relate to the Membership Agreement. Though the Court recognizes that Plaintiffs neither mentioned nor relied on the agreements in their Complaint, Plaintiffs do not persuasively refute Defendant's argument as to the agreements’ centrality: that “Defendant would not have any opportunity to contact Plaintiffs had it not been for these agreements.” (DE [20] at p. 6, n. 1). Courts are more likely to consider claims ‘related to’ a contract if that contract is “the central document in the parties’ relationship.” Int'l Underwriters AG v. Triple I: Int'l Invs., Inc., 533 F.3d 1342, 1347 (11th Cir. 2008). The Membership Agreement appears to be the source of Plaintiff Cardero's relationship with Defendant, and furthermore, it features language relevant to his claims:

By signing below, I consent to receive calls, emails, and texts from Youfit, including information concerning my membership, special offers from Youfit, and advertising and telemarketing messages. Calls and messages may be sent to me through an automatic telephone dialing system or an artificial or prerecorded voice. Signing this consent is NOT a condition of membership or a condition of purchasing any property, goods, or services from Youfit.

(DE [20-1] at p. 2). This language affects the Court's decision, as it accurately reflects the nature of the text messages in the screenshots featured in the Complaint. See (DE [1] at p. 11-15). The Membership Agreement raised the possibility of such communications, which Plaintiff acknowledged with his signed initials directly preceding the relevant portion of the document. This suggests Plaintiff Cardero's claims do relate to or arise out of the Membership Agreement, which, in turn, lays out how the claims should be addressed. Dismissal of Plaintiff Cardero's claims is warranted, because, under the plain language of the Membership Agreement, “any dispute, controversy, or claim arising out of or relating in any way to the Membership Agreement... shall be exclusively resolved by binding arbitration...” (DE [20-1] at p. 3).

Accordingly, it is hereby:

ORDERED AND ADJUDGED that Defendant's Motion to Dismiss Plaintiff's Complaint (DE [20]) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to Plaintiff Cardero's claims but is otherwise denied.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 5th day of May 2025.

All Citations

Slip Copy, 2025 WL 3755406

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com