Calderon v. SIXT RENT A CAR, LLC

SOUTHERN DISTR ICT OF FLORIDA

CASE NO. 19-62408-CIV-SINGHAL

PHILIPPE CALDERON, ANCIZAR MARIN,

and KELLI BOREL RIEDMILLER, on behalf

of themselves and all others similarly

situated,

Plaintiffs,

v.

SIXT RENT A CAR, LLC,

Defendant.

________________________________________/

OPINION AND ORDER

THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment,

filed on July 18, 2022 (the “Motion”) (DE [206]). Defendant filed an accompanying

Statement of Material Facts (“DSOF”) (DE [207]). Plaintiffs filed a Response (DE [220])

and accompanying Statement of Material Facts (“PSOF”) (DE [222]) on August 17, 2022.

Defendant filed a Reply and Reply Statement of Material Facts (“RDSOF”) on September

7, 2022. The Motion is now ripe for this Court’s consideration.

I. BACKGROUND

Plaintiffs bring the instant action against Defendant SIXT Rent A Car, LLC

for its alleged unfair, deceptive, and unlawful conduct of imposing unauthorized

repair charges on rental car customers in breach of its rental contracts with

customers and in violation of the Florida Deceptive and Unfair Trade Practices

Act, Fla. Stat. § 501.201, et seq. (“FDUTPA”). See Second Am. Compl., at 1 (DE

[151]). Plaintiffs allege Defendant organized a company-wide scheme to profit by

systematically charging unfair, deceptive, and unauthorized Estimated Repair

Costs and other sham fees not permitted by the Rental Agreement. Id.

Plaintiffs allege Defendant’s Rental Agreements with Plaintiffs are

comprised of a (i) Face Page Contract and (2) Rental Jacket. Id. at 3. Plaintiffs

further assert Defendant incorporated by reference the Rental Jacket into the

Face Page Contract through the following language:

. . . By signing below, you agree to the Terms and Conditions

printed on the Rental Jacket and to the terms found on this Face

Page, which together constitute this Agreement . . .

Id. at 3. Plaintiffs allege the Rental Jacket lists several fees and charges that

Defendant can impose on customers for damage caused to the rental vehicle. Id.

at 4. Moreover, the Rental Agreement indicates customers are “responsible for the cost

of repair,” “Loss of Use,” “Diminished Value,” and “administrative expenses incurred

processing [a] claim.” Id. However, Plaintiffs allege, Defendant breached these provisions

and violated FDUTPA by charging customers for repairs that never took place and

otherwise improperly inflating fees charged to customers. See generally Second. Am.

Compl. (DE [151]).

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is

appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material

fact and the movant is entitled to judgment as a matter of law.’” Tolan v. Cotton, 572 U.S.

650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));1 see also Alabama v.

1 The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for the former “‘genuine

issue’ of any material fact.”

North Carolina, 560 U.S. 330, 344 (2010). “By its very terms, this standard provides that

the mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there

be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–48 (1986). An issue is “genuine” if a reasonable trier of fact, viewing all of the record

evidence, could rationally find in favor of the nonmoving party in light of his burden of

proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material”

if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “[W]here the

material facts are undisputed and do not support a reasonable inference in favor of the

non-movant, summary judgment may properly be granted as a matter of law.” DA Realty

Holdings, LLC v. Tenn. Land Consultants, 631 Fed. Appx. 817, 820 (11th Cir. 2015).

The Court must construe the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party’s favor. SEC v. Monterosso, 756

F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment,

“the nonmoving party must offer more than a mere scintilla of evidence for its position;

indeed, the nonmoving party must make a showing sufficient to permit the jury to

reasonably find on its behalf.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th

Cir. 2015). “[T]his, however, does not mean that we are constrained to accept all the

nonmovant’s factual characterizations and legal arguments.” Beal v. Paramount Pictures

Corp., 20 F.3d 454, 459 (11th Cir. 1994).

III. DISCUSSION

Defendant seeks summary judgment on several grounds. First, Defendant

argues summary judgment is appropriate on Plaintiffs’ contract claims because

the Terms and Conditions sued upon were not incorporated by reference into

Plaintiffs’ rental agreements as a matter of law based upon the undisputed facts.

Second, Defendant argues summary judgment is proper on Plaintiffs’ FDUTPA

claims because the undisputed facts show Plaintiffs did not suffer actual

damages as a result of unfair or deceptive conduct. Third, Defendants seek

summary judgment on Plaintiffs’ injunctive and declaratory relief claims because

Plaintiffs lack standing to obtain either form of relief under both their contract

claims and FDUTPA claims.

A. Breach of Contract Claims

Plaintiff Calderon rented his vehicle in Florida, Plaintiff Marin rented in

Arizona, and Plaintiff Borel rented in Colorado. See DSOF ¶¶ 12, 45, 64; PSOF

¶¶ 12, 45, 64. Because the State of Florida follows the doctrine of lexi loci

contractus, the law of the state in which each Plaintiff rented their vehicle from

Defendant determines the interpretation and enforceability of the rental contracts.

See Fioretti v. Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1235 (11th Cir. 1995). The

Second Amended Complaint alleges that Defendant breached provisions of the

Terms and Conditions Rental Jacket concerning Fees. See Second. Am. Compl.

¶¶ 102–112. It is undisputed by the parties that Defendant’s routine rental

procedure at the time of Plaintiffs’ rentals provided the renter an opportunity to

review paper copies of the Face Page and Terms and Conditions before the

renter used an electronic signature pad to sign the Face Page, which

incorporated the Terms and Conditions by reference. See DSOF ¶¶ 1–12; PSOF

¶¶ 1–12. Here, however, it is mostly undisputed that Plaintiffs were not shown or

told how to access the Terms and Conditions before they signed the signature

pad. See DSOF ¶¶ 12–19, 21, 22, 44–52, 54, 63–69, 71–74; PSOF ¶¶ 12–19, 21,

22, 44–52, 54, 63–69. The only disputed points concern testimony where Plaintiffs

could not recall whether they were shown the Terms and Conditions prior to signing. See

PSOF ¶¶ 20, 53, 70. Plaintiffs cite no record evidence that could support the inference

that Plaintiffs were shown the Terms and Conditions before signing. Therefore, it is

undisputed that Defendant Sixt departed from its routine procedure with regard to

Plaintiffs’ rentals because it failed to show Plaintiffs the Terms and Conditions or tell

Plaintiffs how to access them before signing. Based on this undisputed factual record, the

Court must determine whether the Terms and Conditions are part of each Plaintiff’s rental

contract.

1. Calderon

Under Florida law, to incorporate by reference a collateral document into an

agreement, the agreement must (1) specifically provide that it is subject to the

incorporated document and (2) sufficiently describe or refer to the collateral document so

that the intent of both parties is ascertained. Spicer v. Tenet Fla. Physician Servs., LLC,

149 So. 3d 163, 166 (Fla. 4th DCA 2014). This Court previously held that Calderon’s Face

Page did not sufficiently describe the Terms and Conditions. See (DE [30], at 11–12).

Moreover, this Court continued that the Terms and Conditions could thus only be

incorporated by reference into the Face Page if Calderon “receive[d] [the Terms and

Conditions], or else [was] given clear direction on how to access it” before signing. Id. at

12.

The undisputed factual record reveals there is no evidence Calderon received or

was shown the Terms and Conditions before signing. See DSOF ¶ 20; PSOF ¶ 20.

Calderon testified he did not recall being shown or given “any paperwork” before he

signed the rental contract. Id. And there is no other record evidence that could support

the inference Calderon received the Terms and Conditions or was given clear direction

how to access them before signing. Thus, the Court finds Plaintiffs cannot prove the

Terms and Conditions were incorporated by reference into the Face Page as a matter of

Florida law.

2. Marin

Under Arizona law, an agreement incorporates by reference a collateral document

if (1) the reference is “clear and unequivocal,” (2) it is “called to the attention of the other

party [who] consents thereto,” and (3) “the terms of the incorporated document [are]

known or easily available to the contracting parties.” United Cal. Bank v. Prudential Ins.

Co., 681 P.2d 390, 420 (Ariz. Ct. App. 1983) (cleaned up). Arizona law does not require

a contracting party “see the incorporated document if the document is easily available.”

Edwards v. Vemma Nutrition, 2018 WL 637382, at *3 (D. Ariz. Jan. 30, 2018) (citing

Weatherguard Roofing Co. v. D.R. Ward Constr. Co., 152 P.3d 1227, 1230 (Ariz. Ct. App.

2007)). But an incorporated document, even if readily available, will not be incorporated

if not called to the attention of the contracting party. See Cottonwood Ctrs. Inc. v.

Klearman, 2018 WL 5084657, at *6 (D. Ariz. Oct. 17, 2018).

The undisputed factual record indicates Plaintiff Marin testified that when he signed

the signature pad, “an electronic black box,” he had “no idea” what he was signing

because it “was never explained.” DSOF ¶¶ 49–52; PSOF ¶¶ 49–52. Marin further

testified he was not shown or handed any papers before signing. DSOF ¶ 51; PSOF ¶

51. No record evidence supports the inference he was shown a copy of the Face Page

or Terms and Conditions before signing. In fact, Marin testified he only thought his signing

the signature pad indicated his acceptance of the credit card charges for the rental. See

DSOF ¶ 49; PSOF ¶ 49. Even if we assume the language in the signature box clearly and

unequivocally referenced the Terms and Conditions and called them to Marin’s attention,

there is still no evidence in the factual record to support an inference that the Terms and

Conditions were either known or available to Marin. Accordingly, the Court finds the

Terms and Conditions were not incorporated by reference into Marin’s rental contract

under Arizona law.

3. Borel

Under Colorado law, an agreement incorporates by reference a collateral

document if (1) it is “clear that the parties to the agreement had knowledge of

and assented to the incorporated terms,” and (2) the incorporated terms are

“clearly and expressly identified.” French v. Centura Health Corp., 509 P.3d 443,

449 (Colo. 2022). “General or oblique references to a document to be

incorporated . . . are usually insufficient to support a finding that the document

was incorporated by reference.” Id. at 450.

Here, Plaintiff Borel does not recall whether she received a copy of or was

told how to access the Terms and Conditions prior to signing the signature pad.

See DSOF ¶¶ 70–71; PSOF ¶¶ 70–71. Borel testified that she recalled receiving

the receipt, which contained the Terms and Conditions, for the first time when

she received the keys to her rental vehicle. Id. Thus, Plaintiffs cannot prove Borel

had knowledge of, let alone assented to, the Terms and Conditions because there

is simply no record evidence that could support an inference that she received or

had access to the Terms and Conditions before signing. The only record

evidence—Borel’s testimony—tends to prove she did not receive the Terms and

Conditions until after signing. And even if we assume she did receive or have

access to the Terms and Conditions before signing, the signature pad’s “[g]eneral

[and] oblique reference[]” to the Terms and Conditions is likely “insufficient to

support a finding that the document was incorporated by reference.” See French,

509 P.3d at 450. Accordingly, the Court finds the Terms and Conditions were not

incorporated into Borel’s rental contract under Colorado law.

4. Estoppel Arguments

Having found the Terms and Conditions are not incorporated into any of the

Plaintiffs’ rental contracts, the Court next addresses other arguments in support of

incorporation. Plaintiffs first argue Defendant Sixt is contractually estopped from claiming

the terms and conditions are unenforceable because contracting parties are generally

estopped from denying a specific term, fact, or performance arising from that contract.

Moreover, Plaintiffs argue the Face Page shows Defendant intended to be bound by the

Terms and Conditions because they included reference to it in the Face Page. This intent

to be bound, Plaintiffs argue, is evidenced by the fact Defendant sought to enforce the

Terms and Conditions against Plaintiffs. Second, Plaintiffs separately argue Defendant is

estopped from claiming Plaintiffs did not assent to the Terms and Conditions because

they previously argued the opposite position in the course of this action.

a. Contractual Estoppel

Plaintiffs cite a patent law treatise and Federal Circuit case for the

proposition that a party that has entered into a contract is estopped from denying

a term, fact, or performance arising from the contract. See Response, at 7–8.

Plaintiffs cite no authority from Florida, Arizona, or Colorado for this proposition.

Under traditional principles of contract law, denying a term, fact, or performance

arising from a contract could be construed as breach of contract, entitling the

non-breaching party to numerous breach of contract remedies, including specific

performance. However, the Court does not see how Plaintiffs’ argument applies

here. Having found the Terms and Conditions to not be incorporated, they are

not part of the contract. Accordingly, denying a term, fact, or performance arising

under the Terms and Conditions is of no consequence. Moreover, Defendant’s

intent to be bound by the Terms and Conditions is of no consequence where the

other requirements of incorporation by reference are not met as discussed supra

section III.A.

b. Judicial Estoppel

“Judicial estoppel is applied to the calculated assertion of divergent sworn

positions.” Am. Nat. Bank of Jacksonville v. Fed. Deposit Ins. Corp., 710 F.2d

1528, 1536 (11th Cir. 1983) (citations omitted). And “[b]ecause this is a diversity

case, the application of . . . judicial estoppel is governed by state law.” Original

Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., 44 F.3d 925, 930 (11th

Cir. 1995) (citations omitted). “Under Florida law, judicial estoppel applies only

when a party maintains inconsistent positions in separate proceedings.” Searcy

v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1358 n.7 (11th Cir. 2018) (citing

Fintak v. Fintak, 120 So. 3d 177, 186–87 (Fla. 2d DCA 2013)). Thus, “judicial

estoppel does not apply to inconsistent positions taken in the course of a single

trial.” Searcy, 902 F.3d at 1358 n.7.

Here, there is no separate proceeding where Defendant took an

inconsistent position to the one it asserts here. Rather, Defendant previously took

an inconsistent position at the beginning of this action based upon the information

available to Defendant at that time. Following the course of discovery in this

action, the parties learned that Sixt did not in fact follow its routine rental

procedure with regard to the individual Plaintiffs as Defendant had initially

believed. At this point, the parties have now turned the chess board around and

argue opposite positions on enforceability of the Terms and Conditions to what

they argued at the case’s onset. Defendant’s position at this phase is not truly

inconsistent with its position at the case’s inception. Rather, Defendant’s position

at the beginning of the case was based on assumptions that turned out to be

incorrect as revealed during discovery. Thus, Defendant has merely changed its

position in light of new facts uncovered during discovery that have disproven the

initial assumptions Defendant formed at the case’s inception. That is exactly what

a Motion for Summary Judgment requires. The doctrine of judicial estoppel does

not forbid this.

B. FDUTPA Claims

Fla. Stat. § 501.211 creates a private right of action for consumers “who

[have] suffered a loss as a result of a violation of [the statute].” Fla. Stat. §

501.211(2). Under this provision, individuals “may recover actual damages, plus

attorney’s fees and court costs as provided in s. 501.2105.” Id. To bring a consumer

claim for damages under the FDUTPA, a plaintiff must prove (1) a deceptive or unfair

practice, (2) causation, and (3) actual damages. Rollins, Inc. v. Butland, 951 So. 2d 860,

869 (Fla. 2d DCA 2006) (citations omitted). A “plaintiff may recover only actual damages

incurred as a consequence of a violation of the statute” and may not recover “nominal

damages, speculative losses, or compensation for subjective feelings of disappointment.”

City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th DCA 2008) (cleaned up).

And critically, “[t]here can be no monetary recovery under the FDUTPA where the plaintiff

has suffered no out-of-pocket losses.” Jones v. TT of Longwood, Inc., 2007 WL 2298020,

at *7 (M.D. Fla. Aug. 7, 2007) (citing Himes v. Brown & Co. Secs. Corp., 518 So. 2d 937,

938 (Fla. 3d DCA 1987)). If a plaintiff subjectively believes he paid for a good or service

(that allegedly violates FDUTPA), but has not actually paid or otherwise incurred an out-

of-pocket loss, there can be no finding of actual damages because “whether [a plaintiff]

thought he had [paid] at the time of the transaction is irrelevant.” Haun v. Don Mealy

Imports, Inc., 285 F. Supp. 2d 1297, 1307 (M.D. Fla. 2003).

Here, all Plaintiffs admit they did not personally pay out-of-pocket any of the fees

at issue. See DSOF ¶¶ 27, 58–61, 77–78; PSOF ¶¶ 27, 58–60, 61 (confirming Marin’s

own company paid fees in connection with the invoice sent to Marin personally), 77–78.

Calderon testified he never paid any of the charges invoiced by Sixt for damage to his

rental vehicle. See DSOF ¶ 27; PSOF ¶ 27. For Plaintiffs Marin and Borel, each of their

companies paid the charges invoiced by Sixt to the Plaintiffs. See DSOF ¶¶ 58–61; PSOF

¶¶ 58–61. Thus, from this undisputed factual record, there is no basis to conclude any of

the Plaintiffs incurred an out-of-pocket loss.

Plaintiffs cite several Supreme Court cases to argue that standing is not defeated

when third parties pay charges invoiced to plaintiffs where the third parties stand in the

shoes of Plaintiffs. See Sprint Communications Co., L.P. v. APCC Services, Inc., 554

U.S. 269, 286 (2008); United States v. Am. Tobacco Co., 166 U.S. 468, 473–74 (1897).

Yet both of these cases deal with the injury-in-fact element of Article III standing. The

injury element here is that in the context of FDUTPA, not Article III standing. Plaintiffs very

well could have suffered injury-in-fact under Article III while failing to have suffered actual

damages under FDUTPA. Therefore, these Supreme Court decisions are inapplicable.

Plaintiffs additionally argue Calderon suffered actual damages through his

purchase of a partial damage waiver. As stated above, under FDUTPA, a “plaintiff may

recover only actual damages incurred as a consequence of a violation of the statute.”

Barton, 988 So. 2d at 86. Plaintiff purchased the partial damage waiver to waive

responsibility for $500 of damage to the rental vehicle. See DSOF ¶¶ 15–17; PSOF ¶¶

15–17. And he received the benefit of the bargain when Defendant in fact applied the

$500 waiver to his assessed damage charges, see DSOF ¶ 25; PSOF ¶ 25, which he

ultimately did not pay, see DSOF ¶ 27; PSOF ¶ 27. Accordingly, the Court finds no nexus

between any alleged violation of FDUTPA and payment of the waiver because the Plaintiff

received the benefit of the bargain for the waiver payment.

C. Declaratory or Injunctive Relief under FDUTPA

Under Fla. Stat. § 501.211(1), “anyone aggrieved by a violation of

[FDUTPA] may bring an action to obtain a declaratory judgment that an act or

practice violates this part and to enjoin a person who has violated, is violating,

or is otherwise likely to violate [FDUTPA].” Fla. Stat. § 501.211(1). Plaintiffs seek

(i) declaratory judgment that Defendant’s Fees are unfair and deceptive, and (ii)

an injunction prohibiting Defendant from continuing to engage in the alleged

unlawful conduct, eliminating the amounts allegedly owed, and barring Defendant

from asserting or assigning the right to collect charges. See Second Am. Compl.

¶¶ 100, 121, 132. “Although the FDUTPA allows a plaintiff to pursue injunctive

relief even where the individual plaintiff will not benefit from an injunction . . . it

cannot supplant Constitutional standing requirements. Article III of the

Constitution requires that a plaintiff seeking injunctive relief allege a threat of

future harm.” Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D. Fla.

2015) (citations omitted). “[T]o seek prospective or injunctive relief, plaintiffs

(including individually named plaintiffs representing a class) must be able to

demonstrate more than mere injury from past wrongs.” Id. (citations omitted).

To obtain injunctive relief, a party must prove “irreparable harm and

inadequacy of legal remedies.” Ne. Fla. Chapter of Ass’n of Gen. Contractors of

Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (cleaned

up). “The injury must be neither remote nor speculative, but actual and imminent.”

Id. (cleaned up). “An injury is irreparable only if it cannot be undone through

monetary remedies.” Id. (cleaned up). To obtain declaratory relief, a party must

show “a substantial continuing controversy between the parties” that is not

“conjectural, hypothetical, or contingent,” but must be “real and immediate.”

Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985) (cleaned up). “The remote

possibility that a future injury may happen is not sufficient to satisfy the actual

controversy requirement for declaratory judgments.”

As an initial matter, Plaintiffs impliedly concede that Plaintiffs Borel and

Marin lack standing to seek equitable relief because Sixt’s claims against them

were paid off by third parties. See Response, at 16–18. Thus, there is no

possibility of future collection attempts and thus no basis for equitable relief for

these Plaintiffs.

With regard to Calderon, Plaintiff’s PSOF states Defendant cancelled its

entire claim against him and reduced the balance of his account to zero in its

internal computer system in January 2018, over a year before the instant action

was filed. See (DE [1]); PSOF ¶ 34. The parties only dispute whether a

cancellation notice or phone call was made to Calderon. See DSOF ¶¶ 35–38;

PSOF ¶¶ 35–38. Even assuming no cancellation notice was sent to Calderon, the

Court finds there is simply no record evidence that could support a finding of

actual or imminent threat of collection attempts or assignments by Defendant.

Rather, the record evidence tends to prove the opposite—the threat of collection

attempts or assignments is remote and speculative because Defendant’s internal

system reveals the account was closed long before the instant action was filed.

Moreover, even assuming arguendo there was an actual or imminent threat of

future collection, this would not rise to the level of irreparable harm because it

could almost certainly be undone through monetary remedies. Second, for these

same reasons, no record evidence could support a finding of a continuing

controversy between the parties that is real and immediate. Instead, the

possibility of future collection attempts or assignments is highly remote given that

Defendant cancelled the claim and eliminated the balance over a year before the

present action was even filed. Plaintiffs assert there is “no factual guarantee by

Sixt” that collection attempts will not occur in the future. See, Response, at 17.

However, “no factual guarantee against injury” is not the standard to obtain

declaratory or injunctive relief.

D. Declaratory or Injunctive Relief under Breach of Contract Claim

For the reasons discussed supra section III.A., Plaintiffs do not have

standing to seek equitable relief concerning the cited portions of the Terms and

Conditions because the Terms and Conditions were not incorporated by

reference into any of their contracts. And Plaintiffs cannot have “representative”

standing to pursue equitable relief on behalf of a putative class when they

personally lack standing. See Wooden v. Bd. of Regents of Univ. Sys. Of Ga.,

247 F.3d 1262, 1288 (11th Cir. 2001) (“just as a plaintiff cannot pursue an

individual claim unless he proves standing, a plaintiff cannot represent a class

unless he has standing to raise the claims of the class he seeks to represent.”).

For the reasons discussed above, it is hereby

ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment

(DE [206]) is GRANTED. The Clerk of Court is directed to CLOSE this case and DENY

AS MOOT any pending motions. Final judgment will be entered separately pursuant to

Fed. R. Civ. P. 58. Defendant shall submit a Proposed Final Judgment in Word format to

Chambers email by September 28, 2022.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 20th day of

September 2022. \

UNITED STATES DISTRICT JUDGE

Copies to counsel via CM/ECF

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