[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11567

____________________

IBALDO ARENCIBIA, 

Plaintiff-Appellant,

versus

AGA SERVICE COMPANY

d.b.a. Allianz Global Assistance,

JEFFERSON INSURANCE COMPANY,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-24694-BB

____________________

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2 Opinion of the Court 21-11567

Before WILSON, ROSENBAUM, Circuit Judges, and COVINGTON,∗

District Judge.

COVINGTON, District Judge:

This appeal arises from Ibaldo Arencibia’s online purchase 

of a travel insurance policy — one he believed to be a broad, “nofault” policy. When the insurer declined to provide coverage for a 

canceled trip, Arencibia filed the instant lawsuit. Arencibia appeals 

the district court’s dismissal of his claims for unjust enrichment and 

violations of the Racketeer Influenced and Corrupt Organizations 

Act (RICO) and the lower court’s refusal to allow him to amend his 

complaint. Because the district court correctly dismissed 

Arencibia’s claims without leave to amend, we affirm.

I 

According to the amended complaint, on August 17, 2019, 

Arencibia purchased a roundtrip airline ticket on American 

Airlines’ website from Miami, Florida, to Bogota, Colombia. When 

booking his ticket, Arencibia was offered the option of purchasing 

travel insurance from AGA Service Company, doing business as 

Allianz Global Assistance (“Allianz”).1 Arencibia alleges that the 

∗ Honorable Virginia M. Covington, United States District Judge for the 

Middle District of Florida, sitting by designation. 

1 Defendant Jefferson Insurance Company is the insurance underwriter.

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21-11567 Opinion of the Court 3

offer box that appeared on American Airlines’ website was 

substantially similar to the following:

Arencibia decided to purchase the travel insurance in 

exchange for the payment of a $36.83 premium. Following his 

purchase, Allianz emailed Arencibia a copy of the 36-page

Individual Travel Insurance Policy (the “Policy”), which provided 

that he could cancel the Policy for any reason within ten days of 

purchase and receive a full refund.

Later, Arencibia was offered a stint of temporary 

employment in the United States on dates that overlapped with his

planned trip to Bogota. Arencibia alleges that, “[t]hinking he was 

‘insured,’” he telephoned Allianz and was told that “his work 

conflict was not covered by his [travel insurance] policy.” The 

Allianz representative directed Arencibia to cancel his flight and 

submit a claim under the Policy to “see what could be done.” 

Arencibia did so, and on September 9, 2019, he received a letter 

from Allianz formally declining to provide coverage under the 

Policy. The September 9 letter stated in pertinent part that Allianz 

was “unable to provide benefits under the coverage [Arencibia] 

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4 Opinion of the Court 21-11567

purchased because . . . [the Policy] is a named perils travel 

insurance program, which means it covers only the specific 

situations, events and losses included in [the Policy], and only 

under the conditions we describe. Unfortunately, trip cancellation 

due to being required to work is not included among those 

reasons.”

Arencibia alleges that the denial letter was in “stark contrast” 

with the representations made by Allianz prior to his purchase of 

the Policy. According to Arencibia, the Allianz offer box led him to 

believe that he was purchasing “broad, no fault insurance 

protection and coverage” such that, if he accepted the insurance 

option, he would not be responsible for any cancellation fees and 

would be reimbursed the price of his flight, no matter the reason 

for cancellation.

Based on this theory, Arencibia brought suit in the Southern 

District of Florida against American Airlines,2 Allianz, and 

Jefferson, alleging claims for declaratory relief, unjust enrichment, 

violation of the Florida Deceptive and Unfair Trade Practices Act, 

violation of the federal RICO statute, and false advertising.

All three defendants filed motions to dismiss the original 

complaint. On August 5, 2020, the district court ordered that the 

entire case be transferred to the United States District Court for the 

Northern District of Texas, and that the pending motions to 

2 American Airlines is not a party to this appeal.

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21-11567 Opinion of the Court 5

dismiss would also be transferred so that the court in Texas might 

rule upon them. 

Upon transfer, the case was assigned to the Honorable Reed 

O’Connor, and Arencibia filed an amended complaint.3 Pursuant 

to the court’s order, the parties re-briefed their motions to dismiss. 

Judge O’Connor granted American Airlines’ motion to dismiss and 

ordered that the remaining claims against Allianz and Jefferson be 

transferred back to the Southern District of Florida. After a third 

round of briefing, the district court in Florida dismissed the 

amended complaint in its entirety without leave to amend. This 

appeal followed.

II 

We review the grant of a motion to dismiss under Rule 

12(b)(6) de novo, accepting the allegations in the complaint as true 

and construing them in the light most favorable to the plaintiff. 

Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 

2004). We review a district court’s denial of leave to amend a 

complaint for an abuse of discretion, but we review de novo its 

legal conclusion that amendment would be futile. Coventry First, 

LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010). We may affirm 

a district court’s decision on any ground supported by the record. 

Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).

3 In the amended complaint, Arencibia raised substantially identical claims to 

those he brought in the original complaint, and any changes are not pertinent 

to the issues on appeal.

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III 

Although the district court dismissed all Arencibia’s claims, 

on appeal he challenges the dismissal of just two – his claims for 

unjust enrichment and for RICO violations. We will examine each 

in turn.

A. Unjust Enrichment 

The district court dismissed Arencibia’s unjust enrichment 

claim for two independent reasons. First, it held that there is no

private right of action under Florida’s Unfair Insurance Trade 

Practices Act (FUITPA) for damages caused by false or deceptive 

representations concerning insurance coverage. Second, it held 

that the unjust enrichment claim was due to be dismissed because 

a valid contract existed between the parties. 

We need not reach the FUITPA issue because even 

assuming (without deciding) that a private cause of action for 

unjust enrichment may exist with respect to the alleged violations 

under FUITPA, we affirm because a valid contract existed between 

Arencibia and Appellees.

Under Florida law, to state a claim for unjust enrichment, a 

party must establish all the following: “(1) a benefit conferred upon 

a defendant by the plaintiff, (2) the defendant’s appreciation of the 

benefit, and (3) the defendant’s acceptance and retention of the 

benefit under circumstances that would make it inequitable for 

him to retain it without paying the value thereof.” Vega v. TMobile USA, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009) (cleaned up).

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The general rule in Florida is that the equitable remedy of 

unjust enrichment is unavailable if an express contract exists. 

Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th 

DCA 2007). Indeed, “[i]t is well settled that the law will not imply 

a contract where an express contract exists concerning the same 

subject matter.” Kovtan v. Frederiksen, 449 So. 2d 1, 1 (Fla. 2d DCA 

1984). That is so because “the theory of unjust enrichment is 

equitable in nature and is, therefore, not available where there is 

an adequate legal remedy.” Bowleg v. Bowe, 502 So. 2d 71, 72 (Fla. 

3d DCA 1987).

Here, an express contract – the Policy – existed. See State 

Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So. 2d 

397, 400 (Fla. 4th DCA 1996) (“An insurance policy is a contract 

between the insured and the carrier.”). And Arencibia does not 

dispute that he entered into an express contract of insurance with 

Jefferson and Allianz. 

Instead, Arencibia argues that he may pursue an unjust

enrichment claim because the Policy is “void and unenforceable.” 

In Arencibia’s view, Appellees induce consumers to enter into the 

Policy by “grossly misrepresenting” its contents. The facts, 

however, demonstrate that Appellees did not misrepresent the 

terms of the Policy. The Policy expressly warns consumers that 

flight cancellation coverage is not unlimited. Specifically, the Policy 

provides, in pertinent part:

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WHAT THIS POLICY INCLUDES AND WHOM IT 

COVERS 

This travel insurance policy covers only the specific 

situations, events, and losses included in this policy, 

and only under the conditions described. For this 

reason, it is known as a “named perils” policy. Please 

review this policy carefully. . . .

NOTE:

Not every loss is covered, even if it is due to something 

sudden, unexpected, or out of your control. Only 

those losses meeting the conditions described in this 

policy may be covered.

The Policy also details the “covered reasons” that would trigger 

coverage — for example, if the insured or a family member became 

ill or injured, if the insured is in a traffic accident on the departure 

date, or if the insured is required to attend a legal proceeding 

during the trip. The Policy does not list a conflicting work 

commitment or the insured’s unilateral decision to cancel the trip 

under “covered reasons.”

What’s more, Arencibia was given multiple opportunities to 

view the Policy’s terms. When Arencibia first viewed the offer box 

on American Airlines’ website, the offer of insurance warned 

consumers that it was subject to “terms, conditions, and 

exclusions,” instructed consumers to “[s]ee coverage details,” and 

provided consumers with a hyperlink to view the terms of the 

insurance coverage. Then, following Arencibia’s purchase, Allianz 

also emailed Arencibia a copy of the Policy. Arencibia was afforded 

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a 10-day grace period to cancel the Policy for any reason and 

receive a full refund. 

Even if Arencibia did not read the terms of the Policy before 

purchasing it, we agree with the district court that Arencibia was 

on inquiry notice that “[t]erms, conditions, and exclusions apply” 

because the hyperlink in the offer box was conspicuous and plainly 

disclosed. See MetroPCS Commc’ns, Inc. v. Porter, 273 So. 3d 

1025, 1028 (Fla. 3d DCA 2018) (explaining that, under Florida law, 

browsewrap agreements like the one here are enforceable “when 

the purchaser has actual knowledge of the terms and conditions, or 

when the hyperlink to the terms and conditions is conspicuous 

enough to put a reasonably prudent person on inquiry notice”). 

In addition, Arencibia does not deny that he received a full 

copy of the Policy shortly after his purchase and that he had ten 

days in which to review the Policy and cancel it for a full refund if 

he was dissatisfied for any reason. See Allied Van Lines, Inc. v.

Bratton, 351 So. 2d 344, 347-48 (Fla. 1977) (explaining that a party 

is bound by his contract and charged with knowledge of its 

contents); Rocky Creek Ret. Props., Inc. v. Estate of Fox, 19 So. 3d 

1105, 1108 (Fla. 2d DCA 2009) (holding that a party is generally 

bound by a contract the party signs unless he is prevented from 

reading it or induced by the other party to refrain from reading it).

Finally, Arencibia availed himself of the insurance by 

making a claim under the Policy, effectively conceding that a 

contract existed between the parties. The fact that Arencibia does 

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not like the terms of the Policy does not serve to make the contract 

unenforceable. 

Accordingly, the district court’s dismissal of Arencibia’s 

unjust enrichment claim is affirmed.4

B. RICO 

In his amended complaint, Arencibia also brought a claim 

for alleged RICO violations, relying on the predicate acts of mail 

fraud and wire fraud to plead a pattern of racketeering activity. The 

district court held that this claim failed for multiple reasons, but we 

confine ourselves to just two.

Section 1962(c) of the RICO statute requires that a plaintiff 

prove that a defendant participated in an illegal enterprise “through 

a pattern of racketeering activity.” 18 U.S.C. § 1962(c). 

“Racketeering activity” is defined to include such predicate acts as 

4 While this appeal was pending, Appellees drew the Court’s attention to two 

recently issued decisions: Marrache v. Bacardi U.S.A., Inc., 17 F.4th 1084 (11th 

Cir. 2021) and Pincus v. American Traffic Solutions, Inc., 333 So. 3d 1095 (Fla. 

2022). In Marrache, this Court affirmed the dismissal of an unjust enrichment 

claim because the defendant made a full and accurate pre-sale disclosure of 

certain information and the plaintiff thus received what they bargained for. 17 

F.4th at 1101-02. And in Pincus, the Florida Supreme Court held that the 

plaintiff’s unjust enrichment claim failed as a matter of law because the 

defendant “gave value in exchange” to the plaintiff such that it was not 

inequitable for the defendant to retain a fee. 333 So. 3d at 1097. While these 

cases provide further support for the Court’s decision, we need not address 

them in great detail, as Arencibia’s unjust enrichment claim fails for the 

reasons described above.

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mail and wire fraud. 18 U.S.C. § 1961(1). To state a claim, then, 

Arencibia needed to sufficiently allege that the defendants 

“intentionally participate[d] in a scheme to defraud another of 

money or property” and “use[d] the mails or wires in furtherance 

of that scheme.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 

1290 (11th Cir. 2010) (citing Pelletier v. Zweifel, 921 F.2d 1465, 1498 

(11th Cir. 1991)). As we have explained:

A scheme to defraud requires proof of a material 

misrepresentation, or the omission or concealment of 

a material fact calculated to deceive another out of 

money or property. “Material” misrepresentations or 

omissions are ones having a natural tendency to 

influence, or capable of influencing, the decision

maker to whom it is addressed. The 

misrepresentation or omission must be one on which 

a person of ordinary prudence would rely.

United States v. Foster, 878 F.3d 1297, 1304 (11th Cir. 2018) 

(internal citations and quotations omitted).

The district court correctly determined that Arencibia failed 

to plausibly allege a material misrepresentation, which is fatal to 

his RICO claim. As explained above, the Allianz offer box 

conspicuously warned Arencibia that “terms, conditions, and 

exclusions apply,” Allianz provided him with a hyperlink to view 

those terms, Allianz provided him with the 36-page Policy at the 

time of purchase, and Arencibia was afforded ten days to review 

and cancel the Policy for any reason and receive a full refund. 

Arencibia does not deny that the terms and exclusions of coverage 

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were laid out in the full Policy that was sent to him, nor that he had 

ten days to review the Policy and cancel it if he was unhappy with 

any of the stated terms. 

Thus, the offer box and Policy provided a full and accurate 

disclosure of the terms, conditions, and exclusions of the insurance 

coverage offered, and Arencibia has failed to plead any actionable 

misrepresentation by the Appellees.

Moreover, Arencibia failed to plausibly allege any injury 

caused by the alleged mail and wire fraud. See Ray v. Spirit Airlines, 

Inc., 836 F.3d 1340, 1348 (11th Cir. 2016) (“A civil plaintiff must also 

show (1) the requisite injury to ‘business or property,’ and (2) that

such injury was ‘by reason of’ the substantive RICO violation.”)

(quotation marks omitted) (quoting 18 U.S.C. § 1964(c)).

The district court correctly held that Arencibia could not

demonstrate any injury under RICO because he received exactly 

what he bargained and paid for – insurance coverage for his 

roundtrip flight, subject to certain conditions and restrictions. In 

other words, Arencibia received the benefit of his bargain and has 

not suffered any injury or loss. Accordingly, his RICO claim was 

correctly dismissed.

C. Leave to Amend 

While district courts should freely give leave to amend when 

justice so requires, they need not grant leave to amend when such 

amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 

(1962). “This court has found that denial of leave to amend is 

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justified by futility when the ‘complaint as amended is still subject 

to dismissal.’” Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 

(11th Cir. 1999) (citation omitted).

The district court concluded that Arencibia’s amended 

complaint failed to state a plausible claim for relief, despite 

Arencibia having the benefit of two fully briefed motions to dismiss 

prior to amendment. What’s more, it held that amendment would 

be futile because his own allegations “negate” any 

misrepresentation on the part of Appellees. We agree. Arencibia’s 

claims are fatally undermined by the offer box disclosures, and by 

the terms of and circumstances surrounding the Policy. The district 

court did not abuse its discretion in denying Arencibia leave to 

further amend his complaint.

IV 

For the reasons stated, we conclude that the district court 

did not err in dismissing Arencibia’s operative complaint without 

leave to amend. Therefore, we affirm the district court.

AFFIRMED. 

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