Britt Green Trucking Inc., et al v. FEDEX National LTL, INC.

Filing 98

ORDER: Plaintiffs' Motion for Partial Summary Judgment 70 is DENIED. Defendant FedEx National LTL, Inc.'s Motion for Summary Judgement 85 is GRANTED. The Clerk is directed to enter judgment in favor of Defendant and against Plaintiffs and CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 12/28/2011. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRETT GREEN and LANNY
WHITSON, individually and
on behalf of all others
similarly situated,
Plaintiffs,
v.

CASE NO:

8:09-cv-445-T-33TBM

FEDEX NATIONAL, LTL, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court for consideration of
Plaintiffs' Motion for Partial Summary Judgment (Doc. # 70)
and Defendant FedEx National LTL, Inc.'s Motion for Summary
Judgment

(Doc.

#

85).

The

parties

filed

responses

opposition thereto (Docs. ## 73 & 89, respectively).

in

For the

reasons below, Plaintiffs' Motion is denied, and FedEx's
Motion is granted.
I.

Background
In 2006, FedEx took control of Watkins Motor Lines, and

Plaintiffs, small business truck owner/operators, entered into
an agreement with FedEx to provide shipping services according
to certain terms contained in an Equipment Lease and Operating
Contract, a form copy of which is attached to the Complaint as

Exhibit A (the "Contract").

The Contract, drafted by FedEx,

describes the manner in which FedEx, the "CARRIER," would
lease, on an as-needed basis, transportation equipment from
the individual truck owner, or "CONTRACTOR," and the truck
owner would provide transportation services.

Under this

arrangement, the truck owner would lease its truck to FedEx
and provide drivers and other necessary labor to transport,
load and unload "such commodities as CARRIER may from time to
time make available to CONTRACTOR."

(Contr. ¶ 2).

Payment

was based on the "full and proper performance of each trip."
(Contr. ¶ 4).

The Contract further specifies that:

[T]his shall not be construed as an agreement by
CARRIER to furnish any specific number or types of
loads or units, pounds, gallons or any other
measurements of weight or volume, quantity, kind or
amount of freight, for transport by CONTRACTOR at
any particular time or place.
(Contr. ¶ 2).

Further, the Contract, in a paragraph titled

"CONTRACTOR'S

DISCRETION,"

states

"As

an

independent

contractor, CONTRACTOR is free to accept or reject assignments
from CARRIER."
continued

to

(Contr. ¶ 3).
"have

the

In addition, each truck owner

right

to

perform

transportation

services for other carriers when not providing such services
to CARRIER."

(Contr. ¶ 6(e)).

Paragraph 6(e), however, goes

on to provide that:

2

In the event CONTRACTOR intends to use Equipment in
any non-Carrier use, including trip leasing,
CONTRACTOR shall, prior to any such use, on each
occasion (1) provide prior written notice to
CARRIER of CONTRACTOR's intent to provide such
services to another carrier; (2) verify that
applicable liability coverage and cargo insurance
of such other carrier is in effect to cover
operation
of
CONTRACTOR
while
providing
transportation services to such other carrier; and
(3) remove or fully cover all of CARRIER's
identification signs, placards, permit markings and
other identifying marks.
(Contr. ¶ 6(e)).

The Contract further requires all written

notices made pursuant to the Contract (including written
notices of a Contractor's intent to provide service to another
carrier) to be delivered in person, or by U.S. certified mail
return receipt requested, or, sent by FedEx Express service.
(Contr. ¶ 15(c)).
Under the Contract, Plaintiffs were required to pay to
FedEx $50.00 per week, per truck, every week until FedEx had
collected $700.00 per truck in an escrow security fund that
FedEx controlled. (Contr. ¶ 7). The escrow security fund was
due to be returned to Plaintiffs no later than 45 days from
the

termination

of

the

Contract

after

all

deductions pursuant to the Contract were made.
7(d)).

credits

and

(Contr. ¶

In addition, Plaintiffs promised to maintain and to

wear FedEx uniforms and photo badges; to maintain their trucks
with

FedEx

signage

and

permits;
3

and

to

maintain

FedEx

monitoring equipment.

(Contr. ¶¶ 12, 14; see also ¶ 18(f)).

These items remained the property of FedEx and had to be
returned to FedEx at termination.
Contract

provided

that

certain

(Contr. ¶ 7(d)).

terms

would

survive

The
the

termination of the Contract so that FedEx would be protected
from responsibility for trucker incurred costs and damages.
(Contr. ¶¶ 4(g), 15(b)).
Finally, the Contract's initial term ran through July 31,
2007, with automatic renewal for successive annual terms. The
Contract, however, allowed either party to terminate without
cause upon 30 days' written notice.
action

arises

from

FedEx's

alleged

Contracts without such notice.
of

contract

for

failure

(Contr. ¶ 15(a)).

to

termination

of

This
the

Count I is a claim for breach
abide

by

the

30-day

notice

requirement. Count II alleges a violation of the implied duty
of good faith and fair dealing.

Finally, Count III asserts a

claim for a violation of the Florida Deceptive and Unfair
Trade Practices Act ("FDUTPA").
FedEx now moves for summary judgment as to all three
counts, and Plaintiffs move for partial summary judgment on
the issue of liability as to the breach of contract claim.
II.

Standard of Review
Summary judgment is appropriate "if the movant shows that
4

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g
Co., 9 F.3d 913, 919 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
The moving party bears the initial burden of showing the
court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). "When a moving party has discharged its
burden,

the

non-moving

party

pleadings,' and by its own

must

then

'go

beyond

the

affidavits, or by 'depositions,
5

answers to interrogatories, and admissions on file,' designate
specific facts showing that there is a genuine issue for
trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 59394 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties' allegations
or evidence, the non-moving party's evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of Plantation, Fla., 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d
1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)).
of

nothing

However, if the non-movant's response consists
"more

allegations,"
required.

than

summary

a

repetition

judgment

is

of

not

his
only

conclusional
proper,

but

Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.

1981).
III. Analysis
A. Count I - Breach of Contract
The

crux

of

this

case

is
6

whether

the

Contract

is

unenforceable due to a lack of consideration.
promise

does

not

constitute

consideration

"An illusory

for

the

other

promise, and thus the contract is unenforceable" when based
upon illusory promises. Johnson Enters. of Jacksonville, Inc.
v.

FPL

Group,

Inc.,

162

F.3d

1290,

1311

(11th

Cir.

1998)(citation omitted). When "one of the promises appears on
its face to be so insubstantial as to impose no obligation at
all on the promisor – who says, in effect, 'I will if I want
to' - then that promise may be characterized as an 'illusory'
promise, i.e., 'a promise in form not in substance.'"

Id.

(citation and quotation omitted); see also Princeton Homes,
Inc. v. Virone, 612 F.3d 1324, 1331 (11th Cir. 2010).

"Where

one party retains to itself the option of fulfilling or
declining to fulfill its obligations under the contract, there
is

no

valid

contract

and

neither

side

may

be

bound."

Rosenberg v. Lawrence, 541 So.2d 1204, 1206 (Fla. 3d DCA
1988)(citing Miami Coca-Cola Bottling Co. v. Orange-Crush Co.,
291 F. 102 (D.C. Fla. 1923), aff'd, 296 F. 693 (5th Cir.
1924)).

"'As a matter of course, no action will lie against

the party making the illusory promise.

Having made no

promise, it is not possible for him to be guilty of a
breach.'"

Id. (citing 1 Corbin on Contracts § 145 (1963)).

The Contract in this case contained "promises" that were
7

no more than illusions as they did not obligate either side to
act.

The Contract specifies that:
[T]his shall not be construed as an agreement by
CARRIER to furnish any specific number or types of
loads or units, pounds, gallons or any other
measurements of weight or volume, quantity, kind or
amount of freight, for transport by CONTRACTOR at
any particular time or place.

(Contr. ¶ 2).

Further, the Contract, in a paragraph titled

"CONTRACTOR'S

DISCRETION,"

states

"As

an

independent

contractor, CONTRACTOR is free to accept or reject assignments
from CARRIER."
continued

to

(Contr. ¶ 3).
"have

the

In addition, each truck owner

right

to

perform

transportation

services for other carriers when not providing such services
to CARRIER."

(Contr. ¶ 6(e)).

FedEx's "promise" to use

Plaintiffs "from time to time," without specifying how often
or to what extent it might use them, is an illusory promise
that cannot be enforced.
The Johnson Enterprises case is instructive. The parties
in

that

case

contracted

for

Telestat

to

provide

cable

construction work to JEJ for an indefinite period, which was
subject to cancellation by either party with 60-days' notice.
Johnson Enters., 162 F.3d at 1297.

The contract in that case

was non-exclusive because it allowed Telestat to use other
contractors for similar construction work, provided that it

8

first offered the work to JEJ and allowed JEJ to decline such
offers of work.

Id.

The Eleventh Circuit found that JEJ's

right to refuse work rendered the contract's "guarantee" to
JEJ of a particular number of miles of cable installation work
unenforceable for lack of consideration.

See id. at 1290.

Under the "right of first refusal" provision, JEJ could turn
down every offer from Telestat.

Id. at 1312.

"The 1987

Contract placed no obligation on JEJ in terms of either
quantity of work performed or price charged for such work.
The 'right of first refusal' provision makes clear that JEJ
could turn down every offer from Telestat, and thus do no work
whatsoever."

Id.

The Eleventh Circuit recognized that in a bilateral
contract, the exchange of promises can serve as consideration,
except where one party's promise is illusory.

Id. at 1311.

The contract in Johnson Enterprises allowed JEJ to reject any
work it was offered, and the court found that JEJ gave nothing
in exchange.

Id. at 1312.

As such, the contract was

unenforceable and "had no more legal effect than an unsigned
piece of paper indicating that the parties intended to enter
into series of construction contracts that would incorporate
by reference some of the provisions appearing on the paper."
Id. at 1313.
9

The Contract in the case at bar provides the terms and
provisions the parties would use should (1) FedEx offer – as
it stated it would "from time to time" - to use the truck
owner's services and (2) the truck owner accept, given its
discretion to refuse any assignment that was offered.

The

mutual illusory promises do not bind either party to do
anything, which is insufficient consideration to create an
enforceable

contract.

As

such,

there

is

no

enforceable

contract in this case, and summary judgment is granted in
favor of FedEx as to Count I.

See also Office Pavilion S.

Fla., Inc. v. ASAL Prods., Inc., 849 So.2d 367, 370 (Fla. 4th
DCA 2003)("It is a fundamental principle of contract law that
a

promise

must

be

supported

by

consideration

to

be

enforceable."); Petroleum Traders Corp. v. Hillsborough Cnty.,
No. 8:06-cv-2289-T-TBM, 2008 WL 4570318, at *4 (M.D. Fla. Oct.
14, 2008)(finding bid agreement unenforceable for lack of
consideration); Allington Towers N., Inc. v. Rubin, 400 So.2d
86,

87-88

(Fla.

4th

DCA

1981)(purchase

agreement

held

unenforceable as lacking mutuality of obligation and mutuality
of remedy).
The Court notes that it previously entered an Order
denying FedEx's Motion to Dismiss.

(Doc. # 31).

Plaintiffs

rely heavily on the language from the Order and attempt to
10

present such as the law of the case.

For example, Plaintiffs

state that "[i]n denying FedEx's Motion to Dismiss..., the
Court determined that the [Contracts] between the parties were
not illusory and, in fact, imposed duties upon each of the
parties."
only

held

Doc. # 89 at 1.
that

However, the Court specifically

Plaintiffs

had

"adequately

alleged

consideration for purposes of surviving a motion to dismiss."
The Court's holding went no further.

Contrary to Plaintiffs'

representations, the Court did not rule that the exchanged
promises were not illusory.

The Court listed what Plaintiffs

alleged as consideration under the Contract.

Based on those

allegations, the Court found that it would be inappropriate at
that stage of the proceedings to hold that there was no
consideration for the Contract.1

1

The Court did not hold,

Specifically, the Court stated:
Plaintiffs argue that they paid Defendant for the
privilege of being in a contract with Defendant in
the form of the escrow requirement.
Defendant
received the value of a work force of truckers in
an "at the ready" condition.
Plaintiffs further
assert
that
they
suffered
prejudice
and
inconvenience from the restrictions in place
impeding the ability to work for other carriers and
the host of other obligations to Defendant under
the Contract. Based on the foregoing, this Court
cannot find at this stage of the proceedings that
the Contract is unenforceable due to a lack of
consideration.
Doc. # 31 at 7-8 (emphasis added).
11

however, that Plaintiffs' allegations of consideration did, in
fact, constitute consideration.

The Court's previous Order

did not establish any law of the case that precludes the
granting of FedEx's Motion for Summary Judgment.
Plaintiffs' Motion for Partial Summary Judgment moves
this Court to find FedEx liable on Plaintiffs' breach of
contract claim.

Plaintiffs specifically seek a finding that

FedEx's unilateral termination of the Contract without the
required written notice constituted a material breach thereof.
To constitute a material breach, a party's nonperformance must
"go to the essence of the contract."

Covelli Family, LP v.

ABG5, LLC, 977 So.2d 749, 752 (Fla. 4th DCA 2008)(citing Beefy
Trail, Inc. v. Beefy King Int'l, Inc., 267 So.2d 853, 857
(Fla. 4th DCA 1972)).

Failure to perform some minor part of

a contractual duty cannot be classified as a vital or material
breach.

Id.

Whether or not an alleged breach is material is

a question of fact to be resolved by the trier of fact or
jury.

See id. (citing Beefy Trail, 267 So.2d at 858).

The

question of whether the alleged breach was material, however,
need not be resolved by the trier of fact in light of the
Court's

finding

that

the

Contract

is

unenforceable.

Accordingly, the Court denies Plaintiffs' Motion for Partial
Summary Judgment.
12

B. Count II - Breach of Implied Duty of Good Faith and
Fair Dealing
Under Florida law, an implied covenant of good faith and
fair dealing exists in every contract.

Burger King Corp. v.

Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).

It is an

interpreting, gap-filling tool of contract law that must
relate to the performance of an express term of the contract.
Shibata v. Lim, 133 F. Supp. 2d 1311, 1318 (M.D. Fla. 2000).
The covenant applies when the propriety of the conduct in
question is not resolved by the terms of the contract.

Id.

That situation ordinarily arises when: 1.) the
contract is ambiguous about the permissibility of
the conduct, or 2.) when the conduct is undertaken
pursuant to a grant of discretion and the scope of
that discretion has not been designated.
When,
however, the express terms of the contract
determine the permissibility of the conduct, no
gap-filler is needed and the covenant does not
apply.
Id. at 1318-19 (citations omitted).
"[A] cause of action for breach of the implied covenant
cannot be maintained (a) in derogation of the express terms of
the underlying contract or (b) in the absence of breach of an
express term of the underlying contract."
F.3d

at

1318;

see

also

Cherry

v.

Burger King, 169

D.B.

Zwirn

Special

Opportunities Fund, L.P., No. 8:09-cv-33-T-33EAJ, 2010 WL
415313, at * 8 (M.D. Fla. Jan. 27, 2010).
13

Thus, unless there

is a breach of a contractual obligation, a claim for breach of
the

covenant

sustained.

of

good

Burger

faith

King,

and

169

fair

F.3d

dealing

at

cannot

1316-18.

be

Having

determined that FedEx is entitled to summary judgment in its
favor on Plaintiffs' breach of contract claim, it follows that
Plaintiffs' claim for breach of the implied duty of good faith
and fair dealing cannot be maintained.

Accordingly, summary

judgment is granted in FedEx's favor on this claim.
C. Count III - FDUTPA
FDUTPA provides protection from "[u]nfair methods of
competition, unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of any trade or
commerce."

Fla. Stat. § 501.204(1) (2008).

The intention of

this law is to provide Florida consumers with a simplified
statutory cause of action that bestows additional remedies to
recover economic damages incurred as a result of a product or
service purchased in a consumer transaction, where a seller
used unfair or deceptive practices or acts.

Hunter v. Bev

Smith Ford, LLC, No. 07-80665-CIV, 2008 WL 1925265, at * 7
(S.D. Fla. Apr. 29, 2008)(citing Jones v. TT of Longwood,
Inc., No. 6:06-cv-651-Orl-19DAB, 2007 WL 2298020, at * 6 (M.D.
Fla. Aug. 7, 2007)).
actions

offend

FDUTPA is violated "when a party's

established

public
14

policy,

are

immoral,

unethical,

oppressive,

injurious to consumers."

unscrupulous,
Id.

or

substantially

To state a claim for damages

under the FDUTPA, a plaintiff must allege facts showing "(1)
a deceptive act or unfair practice; (2) causation; and (3)
actual damages." Rollins, Inc. v. Butland, 951 So.2d 860, 869
(Fla. 2d DCA 2006).
Plaintiffs allege in the First Amended Complaint that:
[T]he "30-day notice" requirement for termination
under the contracts to which the Plaintiffs ...
were parties was a complete sham, in that the
Defendant uniformly, with respect to the entire
class, entirely and utterly disregarded the same
and terminated the contracts unilaterally with no
notice and/or less than the required notice, under
circumstances where the Defendant's intention to
disregard the terms of its own contracts is
manifestly obvious.
Doc. # 48 at ¶ 38.

Plaintiffs argue that FedEx's "behavior

was devious in that FedEx assured Plaintiffs that their jobs
were safe, all the while scheming to cut off their work with
a minimum of disruption to its own operations but without any
concern for the havoc it would cause to these independent
truckers who expected notice of such drastic change under the
terms of their contracts."

Doc. # 89 at 15.

Plaintiffs

basically assert that it was FedEx's intent to terminate
Plaintiffs but FedEx never provided 30-days' notice.
FedEx argues that Plaintiffs' claims under FDUTPA should

15

be denied as a matter of law because Plaintiffs cannot show
any unfair or deceptive act. Specifically, FedEx asserts that
Plaintiffs

cannot

claim

that

the

alleged

breach

of

any

illusory contract was a deceptive act.
"A

deceptive

practice

occurs

if

there

is

a

'representation, omission, or practice that is likely to
mislead the consumer acting reasonably in the circumstances,
to the consumer's detriment.'"

Zambrano v. Indian Creek

Holding, LLC, No. 09-20453-CIV, 2009 WL 2365842, at * 1 (S.D.
Fla. July 30, 2009)(quoting Millennium Commc'ns & Fulfillment,
Inc. v. Office of the Attorney Gen., 761 So.2d 1256, 1263
(Fla. 3rd DCA 2000)).

The Court finds that, viewing the

allegations in the light most favorable to the Plaintiffs,
Plaintiffs' allegations regarding FedEx's failure to comply
with the 30-day notice provision do not, as a matter of law,
constitute an unfair, deceptive or misleading trade practice.
See id.

FedEx is entitled to summary judgment as to this

claim.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiffs' Motion for Partial Summary Judgment
(Doc. # 70) is DENIED.

(2)

Defendant FedEx National LTL, Inc.'s Motion for
16

Summary Judgment (Doc. # 85) is GRANTED.
(3)

The Clerk is directed to enter judgment in favor of
Defendant and against Plaintiffs and CLOSE this
case.

DONE and ORDERED in Chambers in Tampa, Florida, this 28th
day of December, 2011.

Copies:
All Counsel of Record

17