S&S Construction, LLC v. United Rentals (North America), Inc. et al (JOINT ASSIGN)

Filing 39

MEMORANDUM AND ORDER: the court GRANTS IN PART and RESERVES RULING IN PART on Dfts' 28 Motion to Dismiss; GRANTS IN PART Plf's 23 Motion to Amend; and DENIES Dfts' 38 Application for Status Conference; The court dismisses, wit hout prejudice, all claims in the Amended Complaint except Plf's putative class claim for breach of contract arising out of contracts entered into in Alabama; Plf may file a second amended complaint within 30 days of the issuance of this order; If Plf does not so file, the court will rule on the remaining arguments in Dfts' Motion to Dismiss. Signed by Honorable Judge Nicholas G. Garaufis on 7/18/2017. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
x
S&S CONSTRUCTION, LLC,

MEMORANDUM & ORDER

Plaintiff,

2:15-CV-712 (NGG) (SRW)

-against-

UNITED RENTALS (NORTH AMERICA), INC., and
UNITED RENTALS, INC.,
Defendants.
---------------------------------------------------x
NICHOLAS G. GARAUFIS, United States District Judge.'
Plaintiff S&S Construction, LLC, asserts putative class claims against Defendants United
Rentals (North America), Inc., and United Rentals, Inc. (Am. Compl. (Dkt. 14.) Plaintiff asserts
claims for breach of contract and violations of the Florida Deceptive and Unfair Trade Practices
Act ("FDUTPA"), Fla, Stat, § 501.201 et seq. Pending before the court are Defendants' motion
to dismiss all claims (the "Motion to Dismiss") (Defs. 2d Mot. to Dismiss (Dkt. 18)), Plaintiff's
motion for leave to file a second amended complaint (the "Motion to Amend") (P1. Mot to Am.
(Dkt. 23)), and Defendants' application for a hearing on the pending motions (the "Application
for Status Conference") (Defs. Status Conf, Appi. (Dkt. 38)). For the reasons set forth below, the
court GRANTS IN PART Defendants' Motion to Dismiss and RESERVES RULING on the
remaining arguments therein; GRANTS IN PART Plaintiff's Motion to Amend; and DENIES
Defendants' Application for Status Conference.

The Honorable Nicholas G. Garaufis, United States District Judge for the Eastern District of New York, sitting by
designation.

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I. BACKGROUND
A. Plaintiffs Allegations
Defendants operate "one of the largest equipment rental companies in the United
States."' (Am. Compi. 11.) Defendants "charge[] a rental rate which is established in a
uniform, pre-printed contract." (lcD "[un addition to this rate," Defendants' customers may be
charged three types of charges (the "Charges"): (1) "Refueling Charges," which apply "[w]hen a
customer rents equipment which runs on fuel and does not return the equipment fully fueled";
(2) "Environmental Charges," which, according to Defendants' contracts, are "designed to
recover [Defendants'] direct and indirect expenses for handling, managing and disposing of
waste products, hazardous materials, and related administrative costs"; and (3) "Pickup Charges
and Delivery Charges," which customers pay when Defendants deliver or retrieve rented
equipment. (Id. ¶[ 2-5.)
Plaintiff, "an Alabama limited liability company," has "rented from [Defendants'] stores
in Alabama, Florida, and Georgia, and [has] paid each of the [Charges] at issue in this case." (Id.
¶ 13.) Plaintiff offers no further allegations regarding its contractual history with Defendants
concerning, for example, the number of contracts entered into in each state, the date on which
each contract was executed or performed, or the amount Plaintiff paid in rental fees or Charges.
Plaintiff did not attach example contract documents to any pleadings.
Plaintiff asserts that the Charges are unlawful because the amounts charged do not reflect
Defendants' actual underlying costs. (Id. ¶J 2-5.) For example, Plaintiff argues that Defendants'
Refueling Charge bills customers for "much more than [the actual] cost of fuel." (Id. 112.)
Plaintiff does not provide numerical estimates of the alleged overcharge amounts.
2 Plaintiff

alleges that "Defendants operate as a single organization with regard to the conduct at issue in this
Defs. Mem. in Supp. of 2d Mot, to Dismiss
lawsuit." (Am. Compi. ¶ 16.) Defendants contest this allegation.
(Dkt. 19) at 24-26.)

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B. Plaintiff's Putative Class Claims
Plaintiff asserts putative class claims for breach of contract (the "Contract Class") and
violations of FDUTPA (the "FDUTPA Subclass"). The Contract Class would include all persons
"who rented equipment from United stores located in Alabama, Georgia, or Florida" using "the
standard pre-printed, written contract," and who paid at least one of the Charges "during the
applicable statute of limitations."3 (I4 ¶ 19.) Plaintiff asserts that Defendants "breached the
written contracts at issue" by charging "excessive and unlawful" amounts. (jç1. 149.)
The FDUTPA Subclass would include all persons "who rented equipment from United
stores located in Florida," and who paid at least one of the Charges "during the applicable statute
of limitations."' (jçj ¶ 20.) Plaintiff asserts that members of the putative FDUTPA Subclass
"have been harmed by [Defendants'] unconscionable, deceptive, and unfair acts and practices"
because, although Defendants characterize the Charges as "legitimate" fees that are "designed to
recover the costs" Defendants incur for particular purposes, "none of these fees bear any relation
to any increased costs nor any actual costs incurred by [Defendants.]" (ic ¶ 54.)
Plaintiff defines several exclusions from the proposed class and subclass, including "all
claims arising out of a contract that contains a class action waiver or an arbitration clause" and
"all claims arising out of a contract that disclosed the precise amount of the Environmental
Charge or Refueling Charge on the front of the contract." (1d. ¶J 21-22.)
C. Procedural History
Plaintiff initiated this action on September 25, 2015. (Compi. (Dkt. 1).) Defendants
moved to dismiss the complaint on November 10, 2015, asserting arguments as to standing,
The Amended Complaint is inconsistent in defining this claim. The Contract Class definition mentions only the
Environmental and Refueling Charges. (Am. Compi. 119.) In Plaintiffs articulation of the breach of contract
claim, however, Plaintiff purports to assert claims based on all three of the Charges. (See
49.)
the Contract Class, the FDUTPA Subclass definition does not appear to be explicitly limited to customers
who rented equipment using a uniform, pre-printed contract.

personal jurisdiction, venue, and the sufficiency of Plaintiffs allegations. (Defs. 1St Mot. to
Dismiss (Dkt. 12); Defs. Mem. in Supp. of 1st Mot. to Dismiss (Dkt. 12-1).) On November 23,
2015, District Judge Myron H. Thompson' issued an order finding that Plaintiff had failed to
establish diversity jurisdiction under 28 U.S.C. § 1332(d). (Nov. 23, 2015, Order (Dkt. 13).)
Judge Thompson ordered that the case be dismissed without prejudice unless Plaintiff filed an
appropriately amended complaint within seven days. (Id.)
Plaintiff filed the Amended Complaint on November 30, 2015. (Am. Compi.) On
December 17, 2015, Defendants filed the instant Motion to Dismiss, asserting substantially
similar arguments as in their prior motion. (Compare Defs. Mem. in Supp. of 2d Mot. to Dismiss
("Defs. Mem.") (Dkt. 19)

h Defs. Mem. in Supp. of 1st Mot. to Dismiss.)

On April 13, 2016, Plaintiff filed the instant Motion to Amend. (P1. Mot. to Am.) "The
[Proposed] Second Amended Complaint is identical to the First Amended Complaint except that
the Second Amended Complaint adds a single additional class representative," Wells Land
Development, Inc. (li; see also Proposed 2d Am. Compl. (Dkt. 23-1).)
II.

DISCUSSION
Defendants assert that Plaintiff lacks standing to assert all but one of the claims

enumerated in the Amended Complaint because Plaintiff did not enter into any actionable
contracts in Florida or Georgia. The court finds that this argument constitutes a factual, rather
than a facial, challenge to subject matter jurisdiction. The court may therefore consider extrinsic
evidence. Plaintiff has failed to counter Defendants' proffered evidence of the parties'
contractual history, and so the court dismisses for lack of standing all claims premised on
contracts entered into in Florida or Georgia.

This case was reassigned to the undersigned on July 21, 2016. (Not. of Reassignment (Dkt. 29).)

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At this time, the court defers ruling on Defendants' arguments as to the validity of
Plaintiffs sole remaining claim. 6 Rather, the court grants in part Plaintiffs Motion to Amend,
thereby affording Plaintiff an opportunity to cure the jurisdictional defects identified in this
opinion, and also to address, if desired, the other issues raised in Defendants' Motion to Dismiss.
A. Defendants' Motion to Dismiss

1. jçgi1 Standards
a.

Article III Standing

"The Constitution limits the jurisdiction of the federal courts to actual cases or
controversies." Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F,3d 1362, 1366
(11th Cir. 2017) (citing U.S. Const. Art. III, § 2). "[T]he irreducible constitutional minimum of
standing consists of three elements." Id. (quoting Spokeo, Inc. v, Robins, 136 S. Ct. 1540, 1547
(2016)). "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision." Id. (quoting Spokeo, 136 S. Ct. at 1547).
b.

Dismissal for Lack of Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) authorizes defendants to move for dismissal of a
claim based on "lack of subject matter jurisdiction." Fed. R. Civ. P. 12(b)(1). "[T]he burden of
establishing jurisdiction" falls on "the party bringing the claim." United States ex rel. Saldivar v.
Fresenius Med. Care Holdings, Inc., 841 F3d 927, 932 (11th Cir. 2016) (citing Sweet Pea
Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005)).
Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction can be asserted on either facial or factual grounds.
Facial challenges to subject matter jurisdiction are based solely on
6

Because Plaintiffs sole remaining claim arises out of contracts entered into in Alabama, the court need not address
Defendants' arguments as to the proper venue for claims arising out of contracts entered into in other states. (5ce
Defs. Mem. at 23-24.)

the allegations in the complaint. . . . However, where a defendant
raises a factual attack on subject matter jurisdiction, the district
court may consider extrinsic evidence such as deposition testimony
and affidavits.
Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citing
Morrison v. Amway Corp., 323 F.3d

920,

925 n.5 (11th Cir. 2003)); see also Houston v. Marod

Supermarkets, Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013). When assessing a factual
challenge—that is, when the challenge relies on actual "jurisdictional evidence" rather than the
allegations in the complaint—the court is "free to weigh the facts and [is] not constrained to view
them in the light most favorable to the plaintiff]." Carmichael, 572 F.3d at 1279.
"A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is
entered without prejudice." Stalley ex rd. United States v. Orlando Reg'l Healthcare Sys., Inc.,
524 F.3d 1229,

1232

(11th Cir. 2008) (citing Crotwell v. HockmanLewis Ltd.,

734

F.2d 767,

769 (11th Cir. 1984)).
2.

Analysis

Plaintiff assert putative class claims based on rental agreements with the following
features: (1) the contract was entered into in Alabama, Florida, or Georgia during the applicable
statute of limitations; (2) the contract did not contain "a class action waiver or an arbitration
clause"; (3) the contractual parties used a version of Defendants' contract that did not "disclose
the precise amount of the Environmental Charge or the Refueling Charge on the front of the
contract"; and (4) the customer ultimately payed at least one of the Charges. (Am. Compl.
¶IJ 19-22.)

Nowhere does Plaintiff specifically allege the existence of any contract that satisfies
those criteria. Defendants aver that, based on "a diligent search of available United Rentals
records at the time of filing," Plaintiff's only eligible contracts were entered into in Alabama.

(Defs. Mem. at 8-10; see also Summary of Pl.'s Rental Agreements with United Rentals
(Dkt. 12-2) (summarizing the key features of Plaintiff's rental agreements during the relevant
time period, as documented in additional exhibits).) Defendants specifically assert that "Plaintiff
did not enter into any agreements for equipment rental with United Rentals locations in Georgia"
during the relevant period, and that, while Plaintiff did rent equipment in Florida, the Florida
contracts all either contained a class action waiver or did not include payment of any Charge at
issue in the lawsuit. (Defs. Mem. at 8-9.) "With regard to United Rentals locations in
Alabama," however, "Plaintiff entered into four agreements that contained the disputed
[C]harges, none of which contain a class action waiver." (Ici at 9.)
Based on that evidence, Defendants argue that Plaintiff lacks standing to assert putative
class claims for breach of contract under Florida or Georgia law, or for violations of Florida's
Deceptive and Unfair Trade Practices Act. (Id. ("Plaintiff entered into a different agreement than
the majority of its alleged classes, has not suffered the same alleged injuries those purported
classes allege to have suffered, and thus lacks standing to represent those classes.").) The court
construes this as a factual attack on subject matter jurisdiction, and so the court may properly
consider Defendants' extrinsic evidence. Carmichael, 572 F.3d at 1279.
Plaintiff "disputes [Defendants'] factual assertion" regarding standing. (P1. Opp'n to
Defs, 2d Mot. to Dismiss ("P1. Opp'n") (Dkt. 20) at 13.) Plaintiff does not elaborate on that
stance, however, either as to the comprehensiveness or the validity of Defendants' proffered
evidence. Absent competing evidence—or even competing allegations in the Amended
Complaint—the court declines to accord any weight to Plaintiff's conclusory objection.
Plaintiff also argues that, as a matter of law, the question of "whether putative class
representatives are members of each of the classes they seek to represent is a question of their

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adequacy as a class representative, not their standing to pursue the claims." (] (citation
omitted).) Plaintiff contends that "whether class representatives are adequate representatives of
the class is a factual question to be resolved at Ethel class certification" stage, particularly in light
of Defendants' "reliance on documents beyond the scope of the [pleadings]." (Id. at 14 (citations
omitted).)
Plaintiff is correct that the adequacy of a putative class representative is a component of
the required analysis when adjudicating a motion for class certification. See Fed. R, Civ.
P. 23(a)(4). However, a court may not adjudicate a class certification motion if the court lacks
subject matter jurisdiction over the claims asserted therein. See Wooden v. Bd. of Regents of
Univ. Sys. of Georgia, 247 F.3d 1262, 1287 (11th Cir. 2001) ("[A]s a prerequisite to
certification, it must be established that the proposed class representatives have standing to
pursue the claims as to which classwide relief is sought." (emphasis added)). Indeed, a court is
required to dismiss an action sua sponte if, at any time, the court discerns a jurisdictional defect.
Fed. R. Civ. P. 12(h)(3). No class has yet been certified in this action. At this stage, the court
must dismiss for lack of jurisdiction any claim that Plaintiff itself does not have standing to
litigate.
The court finds that Plaintiff lacks standing to assert any claims that do not arise out of
contracts entered into in Alabama. Defendants have searched their records and offered evidence
that Plaintiff never paid any of the disputed Charges in Florida or Georgia during the relevant
time period, except in connection with excluded contracts that contained class action waivers.
Plaintiff has not meaningfully contested that evidence. Absent any qualifying Charge payment
in Florida or Georgia, Plaintiff has not suffered a redressable injury in fact for purposes of his
putative class claims under the common-law contract doctrines or consumer protection statutes in

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Florida and Georgia. 7 See Spokeo ("To establish injury in fact, a plaintiff must show that he or
she suffered 'an invasion of a legally protected interest' that is. . . 'actual or imminent, not
conjectural or hypothetical."' (quoting Lujan v, Defenders of Wildlife, 504 U. S. 555, 560
(1992)). Therefore, the courts grants Defendants' Motion to Dismiss in part and dismisses,
without prejudice, all claims except those arising out of contracts entered into in Alabama.
B. Plaintiff's Motion to Amend
Plaintiff seeks leave to file a second amended complaint that adds an additional plaintiff.
(P1. Mot. to Am.; Proposed 2d Am. Compl.) Defendants oppose the Motion to Amend on
grounds of futility and unjustified delay. (Defs. Opp'n to Mot. to Am. (Dkt. 27).) The court is
cognizant of Rule 15's directive that leave to amend should be "freely give[n] . . . when justice
so requires." Fed. R. Civ. P. 15(a)(2).
The majority of Plaintiff's claims have been dismissed without prejudice. In addition, by
adding or modifying allegations regarding the location of, provisions in, and parties to specific
contracts, Plaintiff may be able to address-or may capitulate to—certain among Defendants'
arguments in favor of dismissal. The court therefore grants Plaintiff's Motion to Amend in part.
Plaintiff will have an opportunity to file a second amended complaint, which need not be
identical to the proposed second amended complaint that Plaintiff attached to the Motion to
Amend.
III. CONCLUSION
For the reasons stated above, the court GRANTS IN PART and RESERVES RULING IN
PART on Defendants' Motion to Dismiss (Dkt. 28); GRANTS IN PART Plaintiff's Motion to
It is conceivable that Plaintiff could assert individual claims under Florida law. Defendants represent that Plaintiff
entered into four rental agreements in Florida that involved payment of at least one Charge, but which also included
class action waivers. (Defs. Mem. at 8-9.) Plaintiff appears to have foregone any claims based on contracts that
contain class action waivers, however. (Am. Compi. 148 ("Plaintiffs claims are based only upon such contracts
which do not contain a class waiver or arbitration clause.").)

Amend (Dkt. 23); and DENIES Defendants' Application for Status Conference (Dkt. 3 g). The
court dismisses, without prejudice, all claims in the Amended Complaint except Plaintiff's
putative class claim for breach of contract arising out of contracts entered into in Alabama.
Plaintiff may file a second amended complaint within 30 days of the issuance of this order. If
Plaintiff does not so file, the court will rule on the remaining arguments in Defendants' Motion
to Dismiss.
SO ORDERED.

Lu4dblto"

Dated: Brookjyn, New York

July jg, 2017

United States District Judge

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